With the end of the Biden Administration in sight, liberal pundits seem to be striving to prove that the only difference between a lawbreaker and a law-abiding citizen is the ability to get away with the crime. Popular figures on the left from Michael Moore to Keith Olbermann are calling on President Joe Biden to commit overtly unlawful acts in his final 100 days in office, including targeting his political opponents. In one of the few statements of Moore with which I agree, he stated that this is “no joke.” It certainly is not.
It is the same logic used by looters that they have a license for illegality. However, this constitutional looting would endanger not just the Constitution but the country as a whole if Biden were to heed this advice.
In a posting on Substack, Moore told Biden that it was time to yield to temptation and check off a liberal 13-item “bucket list” of demands, tossing aside questions of legality or constitutionality in the process.
“You’re not done. You’ve still got 100 days left in office! And the Supreme Court has just granted you superpowers — AND immunity! You don’t answer to anyone. For the first time in over 50 years, you don’t have to campaign for anything…“You have full immunity! No kidding! No joke! That’s not hyperbole! You can get away with anything! And what if anything means everything to the people?”
The list includes emptying death row, canceling all student and medical debt, halting weapons shipments to Israel, ending the death penalty, declaring the Equal Rights Amendment a constitutional amendment, and granting clemency to nonviolent drug offenders. Other pundits have pushed Biden and Democrats to take some of the actions on Moore’s list before the end of the administration.
Many of these items could only be fulfilled by knowingly gutting the Constitution and assuming the powers of a monarch. That includes just canceling all student and medical debt in defiance of both the courts and Congress.
As discussed in my most recent column, others have added to that bucket list. Take Olbermann who, while insisting that he is fighting to “save democracy,” has called upon Biden to target political opponents like Elon Musk with deportation: “If we can’t do that by conventional means, President Biden, you have presidential immunity. Get Elon Musk the F out of our country and do it now.”
These calls come in the midst of a counter-constitutional movement led by law professors. Moreover, the disregard for such legal authority has been voiced by liberal academics like Harvard Professor Lawrence Tribe. Indeed, his past “just do it” approach was not dissimilar in advice to Biden.
For example, the Biden administration was found to have violated the Constitution in its imposition of a nationwide eviction moratorium through the Centers for Disease Control and Prevention (CDC). Biden admitted that his White House counsel and most legal experts told him the move was unconstitutional. But he ignored their advice and went with that of Harvard University Professor Laurence Tribe, the one person who would tell him what he wanted to hear. It was, of course, then quickly found to be unconstitutional.
The false premise of the recent calls is that the Court removed all limits on the presidency in its recent ruling on presidential immunity. The fact that law professors are repeating this clearly erroneous claim is a measure of the triumph of rage over reason today.
As I have previously written, I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. However, I saw good-faith arguments on both sides of this case and the Court adopted a middle road on immunity — rejecting the extreme positions of both the Trump team and the lower court.
As I previously wrote, the Court followed a familiar approach:
The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
The Court has often adopted tiered approaches in balancing the powers of the branches. For example, in his famous concurrence to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson broke down the line of authority between Congress and the White House into three groups where the President is acting with express or implied authority from Congress; where Congress is silent (“the zone of twilight” area); and where the President is acting in defiance of Congress.
The Court separated cases into actions taken in core areas of executive authority, official actions taken outside those core areas, and unofficial actions. Actions deemed personal or unofficial are not protected under this ruling. It is certainly true that the case affords considerable immunity, including for conversations with subordinates. However, as Chief Justice John Roberts lays out in the majority opinion, there has long been robust protections afforded to presidents.
There are also a host of checks and balances on executive authority in our constitutional system. This includes judicial intervention to prevent violations of the law as well as impeachment for high crimes and misdemeanors. What is interesting is not just what is stated but implied. Courts would quickly enjoin such efforts, but figures like Moore suggest that it would not matter. If so, Biden would not only flagrantly violate the Constitution, but then defy the authority of the federal courts. That includes unilaterally declaring an unratified amendment as ratified based on a meritless claim by the far left.
So, President Biden would violate the Constitution, refuse to yield to the courts, and pursue his “bucket list” of priorities without any legal restraints. All would be done in defense of democracy. It shows how the line between tyranny and democracy can be lost in an age of rage.
In announcing his “Operation Aurora,” former President Donald Trump has suggested that he may use the Alien Enemies Act (AEA) of 1798 to crackdown on “every illegal migrant criminal network operating on American soil.” The plan to begin mass deportations is certainly popular with the public, according to polling. However, without a declaration of war, he will likely have to look to alternative statutory vehicles for a peacetime operation. There are novel arguments that could be made in federal court, but they run against the presumed meaning of critical terms under the law. The odds do not favor the government in the likely challenges.
This is not the first time that the Trump campaign has invoked the AEA. Last year, the campaign cited the law as giving it the power to “remove all known or suspected gang Members, drug dealers, or Cartel Members from the U.S.”
The AEA has only been used three times and each time we were in a declared war: the War of 1812, World War I, and World War II. It is a law that became infamous in its use to put Japanese, German, and Italian civilians in internment camps during World War II.
The first reported case arising under the [AEA] is [by the Pennsylvania Supreme Court in] Lockington’s Case [in 1814] … Lockington … had refused to comply with the executive order of February 23, 1813, requiring alien enemies who were within 40 miles of tidewater to retire to such places beyond that distance from tidewater as should be designated by the marshals. He was arrested, and on petition for habeas corpus attempted to test the legality of his imprisonment. Chief Justice Tilghman said of the [AEA]:
“It is a provision for the public safety, which may require that the alien should not be removed, but kept in the country under proper restraints. … It is never to be forgotten that the main object of the law is to provide for the safety of the country from enemies who are suffered to remain within it. In order to effect this safety, it might be necessary to act on sudden emergencies. … The President, being best acquainted with the danger to be apprehended, is best able to judge of the emergency which might render such measures necessary. Accordingly, we find that the powers vested in him are expressed in the most comprehensive terms.”
The law’s sweeping language makes it ripe for abuse. Pennsylvania Supreme Court Justice Brackenridge in Lockington’s Case (1814) observed that under the AEA “the President would seem to be constituted, as to this description of persons, with the power of a Roman dictator or consul, in extraordinary cases, when the Republic was in danger, that it sustains no damage: ne quid detrimenti respublica capiat.”
However, the AEA’s only limiting language is found in the triggering language for those powers:
“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event…”
In Ludecke v. Watkins, 335 U.S. 160 (1948), Supreme Court Justice Felix Frankfurter wrote a supportive decision of the presidential authority under the AEA on when the powers expired, but not when the powers begin:
“And so, we reach the claim that, while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.” (emphasis added).
This broad granting of authority under the AEA is obviously a great attraction for presidents who have rarely hesitated to use the maximal levels of their powers. However, the threshold requirement of a declared war has proven the limiting element, and it is telling that the law has been used only three times by presidents.
It can be used for limits that fall short of deportation or internment. For example, President Woodrow Wilson barred alien enemies during World War I from possessing firearms and explosives, coming within a half a mile of a military facility or munitions factory, residing in certain areas, possessing certain communications equipment, and publishing certain types of materials.
Trump can argue that governments such as Venezuela are using the open border to flood the nation with migrants, including those released from their prisons. That does offer a possible avenue under the claim that a formal declaration, but it would also require a broad reading of the term “invasion” or “incursion.” The problem is that the clear thrust of the law was a conventional war. The question is whether federal courts are willing to adopt a very broad interpretation of such terms despite the presumed legislative intent behind the law at the time of its passage.
The greatest hope for a new Trump Administration would be to argue that the use of the law is a “political question” and thus inappropriate for judicial review. That is often a powerful argument that leads to deference of the courts to the political branches.
Yet, even Baker v. Carr, the Supreme Court’s opinion recognizing the doctrine, reserved the possible use of judicial review to address “an obvious mistake” or “manifestly unauthorized exercise of power.” Courts have declined to use that reservation but there are strong arguments that this is a matter of statutory interpretation and not a matter left to the political discretion of the legislative or executive branches.
Politicians often speak of national emergencies as “wars” but there remains a difference between the colloquial and the legal. A war on illegal immigration is not the same as a war on the Axis powers. The former can be declared in a campaign while the latter requires a declaration of Congress.
None of this means that a president would not have the authority for mass deportations or that Congress could not pass additional such authority. The massive influx of millions of undocumented persons is now a national crisis with growing national security, economic, and social costs for the nation. The numbers are certainly analogous to an “invasion” for cities and states grappling with the wave of migrants. However, the AEA in my view is a poor vehicle for such a program.
Accordingly, I remain skeptical that such a massive program would survive judicial review. Any effort to do so would face an emergency demand for a preliminary injunction. As a threshold legal question, it could move fairly quickly through the courts, and we could have an answer to a question that has lingered for over two centuries.
It appears that U.S. District Judge Tanya Chutkan and Special Counsel Jack Smith are not done yet in releasing material in advance of the election. In a previous column, I criticized the release of Smith’s 180-page brief before the election as procedurally irregular and politically biased, a criticism shared by CNN’s senior legal analyst and other law professors. Nevertheless, on Thursday, Judge Chutkan agreed to a request from Smith to unseal exhibits and evidence in advance of the election. The brief clearly contains damning allegations, including witness accounts, for Trump. The objection to the release of the brief was not a defense of any actions taken on January 6th by the former president or others, but rather an objection to what even the court admitted was an “irregular” process.
As discussed earlier, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial. Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department’s rule against such actions just before elections.
To avoid allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states“Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Even if one argues that this provision is not directly controlling or purely discretionary, the spirit of the policy is to avoid precisely the appearance in this case: the effort to manipulate or influence an election through court filings.
With no trial date for 2025, there is no reason why Smith or Chutkan would adopt such an irregular process. The court could have slightly delayed these filings until after the approaching election or it could have sealed the filings.
If there is one time where a court should err on the side of avoiding an “irregular” process, it is before a national election. What may look like simply an adversarial process to some looks like oppo research to others. Delaying the release would have avoided any appearance of such bias.
For Smith, the election has long been the focus of his filings and demands for an expedited process. Smith knows that this election is developing into the largest jury verdict in history. Many citizens, even those who do not like Trump, want to see an end to the weaponization of the legal system, including Smith’s D.C. prosecution. Trump has to lose the election for Smith to be guaranteed a trial in the case.
Chutkan has given the Trump team just seven days to oppose her order. That would still allow the material to make it into the public (and be immediately employed by the media and Harris campaign) just days before the election. The move will only increase criticism that this looks like a docket in the pocket of the DNC.
It is telling that, once again, the timing just works out to the way that is most politically impactful. Many are left with a Ned Flanders moment of “well, if that don’t put the “dink” in co-inky-dink.”
In prior columns, academic articles, and my book, “The Indispensable Right, I discuss the never-ending litigation targeting Jack Phillips, the Christian baker who declined to make cakes that violated his religious beliefs. Phillips continues to be the subject of continuing lawsuits despite the Supreme Court upholding his right to decline to make expressive products for ceremonies or celebrations that he finds immoral. Now the Colorado Supreme Court has dismissed an action brought by a transgender lawyer against the cake shop and its owner.
Phillips has been the target of an unrelenting litigation campaign for over a decade.
In 2012, Charlie Craig and David Mullins asked Phillips to make a cake for their same-sex marriage. As a devout Christian, Phillips declined. He would sell any pre-made cakes to customers, but said that he could not morally make a cake for same-sex marriages.
That refusal turned Phillips’ tiny bakery into ground zero for the long-standing battle between religious rights and anti-discrimination laws. The Colorado Civil Rights Commission found that Phillips must make the cakes under the Colorado Anti-Discrimination Act (CADA).
The case went all the way to the Supreme Court in what many of us hoped would be a final resolution of this conflict. I had long criticized the framing of the case (and other cases) under the religious clauses as opposed to taking this as a matter of free speech. In the end, the Supreme Court punted in a maddening 2018 decision that technically ruled in favor of Phillips based on a finding that the Commission showed anti-religious bias against Phillips.
As a result, Phillips was thrown back into an endless grind of litigation as activists targeted his bakery for additional challenges by demanding cakes with other messages that Phillips found offensive.
In 2023, the Supreme Court delivered a major victory for free speech in 303 Creative v. Elenis when it ruled that Lorie Smith, a Christian website designer, could refuse service to a same-sex marriage. Justice Neil Gorsuch wrote “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ … They did so because they saw the freedom of speech ‘both as an end and as a means.’”
The decision was not just a vindication for Smith but Phillips. However, Phillips continued to languish in the Colorado system, spending over a decade in non-stop challenges and lawsuits. Because the Supreme Court could not reach a clear resolution, it left Phillips to the continued pursuit of activists targeting his bakery.
The latest dispute began when Autumn Scardina spoke to the wife of Phillips and requested a pink cake with blue frosting to celebrate her gender transition. When the shop declined, Scardina filed an anti-discrimination claim with the Colorado Civil Rights Division (“the Division”) under section 24-34-306, C.R.S. (2024).
In her complaint, Scardina suggested that this was not a targeting of the famous cake shop but merely an effort to get a birthday cake.
In the complaint, Scardina wrote: “Ms. Scardina repeatedly heard Defendants’ advertisements that they were “happy” to sell birthday cakes to LGBT individuals. Hopeful that these claims were true, on June 26, 2017, Ms. Scardina called Masterpiece Cakeshop from Denver to order a birthday cake for her upcoming birthday.”
The shop said that they could make such a cake. However, “Ms. Scardina then informed Masterpiece Cakeshop that the requested design had personal significance for her because it reflects her status as a transgender female.” When the shop noted that it did not make cakes for gender transitions, Scardina insisted that it was for her birthday.
Having established the basis for the lawsuit, she then filed an administrative action. Eventually, however, she jumped from the administrative process into the courts. That would prove the procedural problem for the Colorado Supreme Court.
Scardina prevailed in the lower courts but the case was dismissed by the Colorado Supreme Court on technical grounds.
Justice Melissa Hart wrote in the Colorado Supreme Court’s majority opinion that
“The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market? We cannot answer that question.”
The most notable aspect of this opinion is that, after a decade, Phillips is still being dragged through the courts despite the fact that the Supreme Court has recognized his free speech right to decline such contracts.
Alliance Defending Freedom (ADF) has defended Phillips and Jake Warner, ADF senior counsel, stated “Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone.”
It is doubtful that activists will heed that request.
We previously discussed the defamation lawsuit against Deadspin and writer Carron Phillips over an article claiming that nine-year-old Holden Armenta appeared at a Chiefs game in 2023 in black face. I noted in a prior column that I believed that the court would view this as a matter that had to go to a jury. It now has. Superior Court Judge Sean Lugg this week rejected Deadspin’s motion to dismiss.
Phillips posted a side image of Holden at a game of the Kansas City Chiefs against the Las Vegas Raiders, showing his face painted black. The 9-year-old was wearing a headdress while doing the signature “Tomahawk Chop.”
Phillips went into full attack mode.
The senior Deadspin writer had a Pavlovian response in a scathing article on the boy’s “racist” and “disrespectful” appearance.
“It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate black people and the native Americans at the same time…Despite their age, who taught that person that what they were wearing was appropriate?”
Phillips also denounced the NFL for “relentlessly participating in prejudice.” In a now-deleted tweet, Phillips later called people “idiots” for “treating this as some harmless act.”
Of course, the full picture showed that Armenta had the other half of his face painted in red paint — the Chiefs colors. It also turns out that he is Native American. Indeed, his grandfather is serving on the Santa Ynez Band of Chumash Indians.
Deadspin obviously valued Phillips’ take on race as do other journalists and columnists. Despite his past controversial writings, he was selected as the 2019 & 2020 National Association of Black Journalists Award Winner.
In Armenta v. G/O Media, Inc. Lugg wrote that “[h]aving reviewed the complaint, the court concludes that Deadspin’s statements accusing [Holden] of wearing black face and Native headdress ‘to hate black people and the Native American at the same time,’ and that he was taught this hatred by his parents, are provable false assertions of fact and are therefore actionable.”
The opinion turned on whether this could be treated as opinion as opposed to a statement of fact. California law applied in the case and the court focused on two opinions that held that claims of racism can be statements of fact. Lugg wrote:
Generally, statements labeling a person as racist are not actionable. “A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact.”…
Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {“Blackface is used to mock or ridicule Black people; it is considered deeply offensive.” Deadspin, in recasting Black face as “culturally insensitive face paint” in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an assertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), assist in clarifying this distinction.
The Court in Overhill Farms held that “a claim of racially motivated employment termination is a provably false fact.” In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse against Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees’ motion, reasoning:
[D]efendants did not merely accuse [their employer] of being “racist” in some abstract sense …. [I]n almost every instance, defendants’ characterization of [their employer] as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer’s] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants’ written press release, leaflets and flyers accused Overhill of more than harboring racist attitudes; they accused Overhill of engaging in a mass employment termination based upon racist and ageist motivations. Such a contention is clearly a “provable fact;” indeed an employer’s motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.
In La Liberte v. Reid, a community activist brought suit after a television host republished two photographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming “You are going to be first deported … dirty Mexican!” at a 14-year-old boy. The second caption compared a photograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television host moved to dismiss the activist’s defamation claims, arguing that her statements were “nonactionable statements of opinion.” The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:
A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant’s] comment that “[h]istory sometimes repeats.” That interpretation is bolstered by [defendant’s] description of the white woman in the Little Rock photograph as a “person screaming at a child, with [her] face twisted in rage” and [her] comment that it was “inevitable” that the photos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. Like the defendants in Overhill Farms, [defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it potentially defamatory.
The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court should be guided by Overhill Farms and La Liberte. These statements include:
(1) H.A. was wearing “Black face;”
(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of Black people;
(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native Americans;
(4) H.A. is part of a “future generation[ ]” of racists who had “recreate[d] racism better than before”; and
(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in their home.
Deadspin’s audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.’s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.’s motivation for appearing as he did.
Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the thrust of these representations is resolved in the opening line of the article, where the author unequivocally asserts, “It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time.”
While arguably couched as opinion, the author devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating those who may have taught him—his parents. A reader might not, as Deadspin contends, interpret this assertion as a reflection of the author’s opinion. To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article’s assertion that H.A. was wearing Black face as fact….
The CBS broadcast showed H.A. for approximately three seconds. In those three seconds, viewers could see that H.A.’s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual assertion that there was a “Chiefs fan in Black face” at the game. The complaint asserts facts that, reasonably interpreted, establish Deadspin’s Original Article and its Updates as provably false assertions of fact….
Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are “inherently subjective and therefore non-actionable[.]” Not so. They reflect reasoned assessments of the lines between protected and actionable speech and offer a paradigm for identifying and assessing provably false allegations of racial animus. This Court may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.” Applying the analytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a “possibility of recovery.” …
This is a well-constructed and well-supported decision that could have lasting importance. In an age of rage, including race-baiting columns like the one in this case, the opinion is a shot across the bow for publications like Deadspin.
We have seen a series of major rulings allowing public figures to go forward in other defamation lawsuits against media companies. In addition to alienating much of their markets with echo journalism, these outlets are now facing mounting legal costs due to attack pieces like this one. The bill is now coming due.
The reinvention of Vice President Kamala Harris in this election has been a thing to behold. In politics, candidates often reconstruct their records to secure votes, but Harris appears to have constructed an entirely mythical being. Once ranked to the left of socialist Sen. Bernie Sanders and viewed as among the most liberal members of the Senate, Harris has sought to convince the public that she is actually a frack-loving, gun-toting, border-defending moderate. This last week, Harris sounded like she has hired Neo as her new campaign manager from the Matrix. When asked “what do you need, besides a miracle?” Neo replied “Guns. Lots of Guns.”
When CBS’s Bill Whitaker expressed shock at her gun-toting persona on the campaign trail, he asked if she actually fired it. Harris then did her best Rooster Cogburn, who noted “Well a gun that ain’t loaded, ain’t much good for nuthin.” Harris said that she has of course fired the gun in her trips to the firing range.
While she was referring to defending her home, Harris’s pledge to gun down intruders stands in stark contrast to her opposition to stand your ground laws. When she was the San Fransisco District Attorney, Kamala Harris was one of the signatories on the District Attorneys’ amicus brief in District of Columbia v. Heller — in support the handgun ban. The Court rejected the position of Harris and her fellow Democratic DAs and held that there is an individual right to bear arms under the Second Amendment.
Harris’ true grit has delighted activists who are trying to lure male voters back to the Democratic Party. It may not be as thrilling to some in the Biden-Harris Administration including President Joe Biden.
As we have previously discussed, Biden and other Democrats have repeatedly denounced semiautomatics and some have suggested that, with a change in the Supreme Court, they might be banned. While the Administration has repeatedly called for a ban on AR-15s, the most popular weapon in America, President Biden has suggested in the past that he might seek to ban 9mm weapons.
In reference to guns that use 9mm ammunition, Biden declared “there’s simply no rational basis for it in terms of thinking about self-protection.”
It is a call that has been echoed in Canada where Prime Minister Justin Trudeau announced that his government is introducing legislation to “implement a national freeze on handgun ownership.” He said Canadians would no longer be able “to buy, sell, transfer or import handguns anywhere in Canada,” adding that “there is no reason anyone in Canada should need guns in their everyday lives.”
While the White House subsequently tried to walk back his comments, Biden saying there’s “no rational basis” to own 9mms makes the new Harris look . . . well . . . irrational. Both Biden and Harris have made sweeping, unsupportable statements about guns and constitutional protections. For example, despite being repeatedly corrected, President Biden continues to repeat the same false statements about bans on weapons when the Second Amendment was ratified.
Likewise, in support of the ban on AR-15s, Harris declared: “Do you know what an assault weapon is? It was designed for a specific purpose, to kill a lot of human beings quickly. An assault weapon is a weapon of war, with no place, no place in a civil society.”
Yet, courts likely would press a Harris administration on why it is seeking to ban this model when other higher-caliber weapons are sold. AR-15s can handle a variety of calibers. However, they are no more powerful than other semi-automatic rifles of the same caliber and actually have a lower caliber than some commonly sold weapons which use .30-06, .308 and .300 ammunition; many of these guns fire at the same — or near the same rate — as the AR-15. None of these weapons are classified as actual military “assault weapons,” and most civilians cannot own an automatic weapon.
As discussed earlier, President Biden showed the same disconnect as Harris between the factual and the rhetorical basis for some gun-control measures. He condemned “high-caliber weapons” like 9mm handguns and said “a .22-caliber bullet will lodge in the lung, and we can probably get it out — may be able to get it and save the life. A 9mm bullet blows the lung out of the body.”
Biden has not made any comment on Harris promising to blow away anyone coming into her house with her own Glock.
Yet, before condemning Harris for her implied threat to “blow lungs out of bodies,” Biden should again check both the constitutional and practical statements about handguns.
Gun experts mocked the notion that 9mm rounds blow organs out of bodies, but 9mm ammunition is the most popular handgun caliber in the U.S., with more than half of all handguns produced in 2019 using that round, according to Shooting Industry magazine. If Biden pushed a ban, he would target more than 40 percent of all pistols produced in the U.S., including many Glocks.
Again, in fairness to Harris, she is not the first politician to reinvent herself on the campaign trail. For now, Harris wants to be clear that “I have a Glock, and I’ve had it for quite some time.” For critics, the reload is a bit much given her record. Yet, in a close election, many activists want voters in states like Pennsylvania to know that Harris is the virtual Jed Clampett of the Beverly Hills set. Indeed, you get the impression that she would use her Glock to frack, if only she could.
While 9mm’s have been vilified by the Biden-Harris Administration, it just happens to be one of the most popular guns in the United States . . . and Harris wants people to know that she has one and knows how to use it.
As a politician reinventing herself in a higher-caliber image, she chose wisely. Indeed, other politicians may want to take heed and listen to Deputy Marshall Sam Gerard in U.S. Marshalls: “Get yourself a Glock and get rid of the nickel-plated sissy-pistol.”
The Largest-Ever Survey of American Gun Owners Finds That Defensive Use of Firearms Is Common
The results also confirm that “assault weapons” and “large capacity” magazines are widely used for lawful purposes.
The largest and most comprehensive survey of American gun owners ever conducted suggests that they use firearms in self-defense about 1.7 million times a year. It also confirms that AR-15-style rifles and magazines that hold more than 10 rounds, frequent targets of gun control legislation, are in common use for lawful purposes, which the Supreme Court has said is the test for arms covered by the Second Amendment.
The online survey, which was conducted by Centiment in February and March of 2021, was based on a representative sample of about 54,000 adults, 16,708 of whom were gun owners. Georgetown University political economist William English, who commissioned the survey as part of a book project, presents its major findings in a recent paper available on the Social Science Research Network.
The overall adult gun ownership rate estimated by the survey, 32 percent, is consistent with recent research by Gallup and the Pew Research Center. So is the finding that the rate varies across racial and ethnic groups: It was about 25 percent among African Americans, 28 percent among Hispanics, 19 percent among Asians, and 34 percent among whites. Men accounted for about 58 percent of gun owners.
Because of the unusually large sample, the survey was able to produce state-specific estimates that are apt to be more reliable than previous estimates. Gun ownership rates ranged from about 16 percent in Massachusetts and Hawaii to more than 50 percent in Idaho and West Virginia.
The survey results indicate that Americans own some 415 million firearms, including 171 million handguns, 146 million rifles, and 98 million shotguns. About 30 percent of respondents reported that they had ever owned AR-15s or similar rifles, which are classified as “assault weapons” under several state laws and a proposed federal ban. Such legislation also commonly imposes a limit on magazine capacity, typically 10 rounds. Nearly half of the respondents (48 percent) said they had ever owned magazines that can hold more than 10 rounds.
Those results underline the practical challenges that legislators face when they try to eliminate “assault weapons” or “large capacity” magazines. The survey suggests that up to 44 million AR-15-style rifles and up to 542 million magazines with capacities exceeding 10 rounds are already in circulation.
Those are upper-bound estimates, since people who reported that they ever owned such rifles or magazines may have subsequently sold them. But even allowing for some double counting, these numbers suggest how unrealistic it is to suppose that bans will have a significant impact on criminal use of the targeted products. At the same time, widespread ownership of those products by law-abiding Americans makes the bans vulnerable to constitutional challenges.
Two-thirds of the respondents who reported owning AR-15-style rifles said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used such rifles for home defense, and 35 percent cited defense outside the home. Yet politicians who want to ban these rifles insist they are good for nothing but mass murder.
Owners of “large capacity” magazines likewise cited a variety of lawful uses. Recreational target shooting (64 percent) was the most common, followed by home defense (62 percent), hunting (47 percent), defense outside the home (42 percent), and competitive shooting (27 percent).
Politicians who favor a 10-round limit argue that no one except for criminals and police officers really needs a larger magazine. Yet respondents described various situations, based on their personal experiences, where “it would have been useful for defensive purposes to have a firearm with a magazine capacity in excess of 10 rounds.” These ranged from muggings and home invasions by multiple attackers to encounters with wild animals.
Maybe these gun owners were wrong to think the ability to fire more than 10 rounds without reloading was important in those situations. But judging from the responses that English quotes, they had cogent reasons for believing that. Bans on “large capacity” magazines routinely exempt current and retired police officers, on the theory that they are especially likely to face threats (such as multiple assailants) that may require more than 10 rounds. It strains credulity to suggest that ordinary citizens never face such threats, and this survey provides further reason to doubt that assumption.
Thirty-one percent of the gun owners said they had used a firearm to defend themselves or their property, often on multiple occasions. As in previous research, the vast majority of such incidents (82 percent) did not involve firing a gun, let alone injuring or killing an attacker. In more than four-fifths of the cases, respondents reported that brandishing or mentioning a firearm was enough to eliminate the threat.
That reality helps explain the wide divergence in estimates of defensive gun uses. The self-reports of gun owners may not be entirely reliable, since they could be exaggerated, mistaken, or dishonest. But limiting the analysis to cases in which an attacker was wounded or killed, or to incidents that were covered by newspapers or reported to the police, is bound to overlook much more common encounters with less dramatic outcomes.
About half of the defensive gun uses identified by the survey involved more than one assailant. Four-fifths occurred inside the gun owner’s home or on his property, while 9 percent happened in a public place and 3 percent happened at work. The most commonly used firearms were handguns (66 percent), followed by shotguns (21 percent) and rifles (13 percent).
Based on the number of incidents that gun owners reported, English estimates that “guns are used defensively by firearms owners in approximately 1.67 million incidents per year.” That number does not include cases where people defended themselves with guns owned by others, which could help explain why English’s figure is lower than a previous estimate by Florida State University criminologists Gary Kleck and Marc Gertz. Based on a 1993 telephone survey with a substantially smaller sample, Kleck and Gertz put the annual number at more than 2 million.
Although less than one in 10 of the defensive gun uses identified by English’s survey happened in public places, most of the respondents (56 percent) said they had carried handguns for self-defense. More than a third (35 percent) said they did so “sometimes,” “often,” or “always or almost always.” About the same percentage reported that they had wanted to carry handguns in circumstances where local rules prohibited it.
At the time of the survey, the ability to legally carry handguns in public varied widely across jurisdictions. Some states had highly restrictive laws that gave local officials wide discretion to reject carry permit applications, a policy that the Supreme Court recently deemed unconstitutional. Even after that ruling, some states plan to enforce licensing requirements and/or location restrictions that make it difficult for residents to carry handguns for self-defense. Depending on your perspective, the results of this survey demonstrate either the wisdom or the injustice of that strategy.
English’s survey also asked about incidents in which respondents believed that the visible presence of a gun had neutralized a potentially violent threat. He says that category would include, for example, “a situation in which a combative customer calmed down after noticing that shop owner had a handgun on his or her hip, or a situation in which a trespasser cooperatively left a property when questioned by a landowner who had a rifle slung over his or her shoulder, or a situation in which a friend showed up with a firearm to help [defuse] a dangerous situation.”
Nearly a third of gun owners reported such incidents, and some said they had witnessed them more than once. English says the results imply “approximately 1.5 million incidents per year [in] which the presence of a firearm deterred crime.” That estimate, of course, depends on the respondents’ subjective impressions, so it is probably less reliable than the estimate of explicit defensive uses, which itself is open to the usual questions about the accuracy of respondents’ interpretations and recollections. But even taken with the appropriate measure of salt, the results suggest that competing studies may grossly underestimate the defensive value of guns.
Below is my column in The Hill on the release of the filing by Special Counsel Jack Smith just weeks before the election. Even Judge Tanya Chutkan described the move as “irregular,” but still ordered the release. While the usual voices heralded the move, others, including the CNN senior legal analyst, denounced the release as a raw political act by the court and the Special Counsel. The problem is that it was not in the least bit surprising.
Here is the column:
“The most stupendous and atrocious fraud.” Those words from federal prosecutors could have been ripped from the filing this week of Special Counsel Jack Smith defending his prosecution of former President Donald Trump.
Yet they were actually from a Justice Department filing 184 years ago, just days from the 1840 presidential election. Democratic President Martin Van Buren was struggling for reelection against Whig William Henry Harrison, and his Justice Department waited until just before voters went to the polls to allege that Whig Party officials had paid Pennsylvanians to travel to New York to vote for Whig candidates two years earlier. It was considered by many to be the first “October Surprise,” the last-minute pre-election scandal or major event intended to sway voters.
To avoid such allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states“Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Jack Smith, however, has long dismissed such considerations. For years, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial. Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department’s rule against such actions just before elections.
After the Supreme Court rendered parts of his indictment against Trump presumptively unconstitutional, Smith made clear that he was prepared to prosecute Trump up to the very day of his inauguration. True to his reputation and record, Smith refused to drop the main allegations against Trump to avoid official decisions or acts that the court found to be protected in Trump v. United States. Instead, he stripped out some prior evidence linked to Trump’s presidency, including witnesses serving in the White House. Yet the same underlying allegations remain. Smith just repeatedly uses references to Trump as acting as “a private citizen.”
It is like a customer complaining that he did not order a Coke and the waiter pouring it into a Mountain Dew bottle and saying, “Done!”
Smith even refused to drop the obstruction of official proceedings, despite another recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid.
Smith is making his case not to Judge Tanya Chutkan, but to America’s voters. Chutkan has consistently ruled with Smith to help him expedite the case. She permitted his hastened “rocket docket” despite declaring that she would not consider the election schedule as a factor in the pace of filings or even of the trial itself.
For critics, Judge Chutkan has proven far too motivated in the case. Indeed, many thought that she should have recused herself given her statement from a sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her courtroom for trial by Smith.
In their latest move, Chutkan and Smith used the Supreme Court decision to file a type of preemptive defense — an excuse to lay out the allegations against Trump in a 165-page filing filled with damaging accounts and testimonials against Trump, just weeks ahead of the election.
Even Chutkin herself acknowledged that Smith’s request was “procedurally irregular,” but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political machinations. But the political effect appears to be the point. Chutkin again selected the most politically impactful option, at Smith’s urging.
This was so“irregular” that ordinarily anti-Trump legal analysts, such as CNN’s senior legal analyst Elie Honig, denounced Smith’s filing as “an unprincipled, norm-breaking practice.” He added that “Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects.”
Others, as expected, applauded the filing as not just well-directed but well-timed. Smith was making his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history. If voters reelect Trump, then neither Chutkin nor Smith will likely see a jury in the case. This is why they must convict Trump now in the public eye, or else admit to an effective acquittal by plebiscite.
Their timing could well backfire. The weaponization of the legal system is central to this election, including the role of the Justice Department in pushing the debunked Russia-collusion allegations from the 2016 race. For many, the content of Smith’s filing is not nearly as important as the time stamp over the case caption. Titled a “Motion for Immunity Determination,” it seems more like a “Motion for an Election Determination.”
Smith’s raw political calculation should be troubling for anyone who values the rule of law. None of this excuses anything in these allegations against Trump. But the most disturbing part of Smith’s October Surprise was that it was not in the least bit surprising.
Hillary Clinton is continuing her global efforts to get countries, including the United States, to crackdown on opposing views. Clinton went on CNN to lament the continued resistance to censorship and to call upon Congress to limit free speech. In pushing her latest book, “Something Lost and Something Gained,” Clinton amplified on her warnings about the dangers of free speech. What is clear is that the gain of greater power for leaders like Clinton would be the loss of free speech for ordinary citizens.
Clinton heralded the growing anti-free speech movement and noted that “there are people who are championing it, but it’s been a long and difficult road to getting anything done.” She is right, of course. As I discuss in my book, the challenge for anti-free speech champions like Clinton is that it is not easy to convince a free people to give up their freedom. That is why figures like Clinton are going “old school” and turning to government or corporations to simply crackdown on citizens. One of the lowest moments came after Elon Musk bought Twitter on a pledge to restore free speech protections, Clinton called upon European officials to force Elon Musk to censor American citizens under the infamous Digital Services Act (DSA). This is a former democratic presidential nominee calling upon Europeans to force the censorship of Americans.
She was joined recently by another former democratic presidential nominee, John Kerry, who called for government crackdowns on free speech. Other democrats have praised Brazil for banning X. For her part, Clinton praised the anti-free speech efforts in California and New York and called for the rest of the country to replicate the approach of those states.
Clinton added a particularly illuminating line that said the quiet part out loud. This is all about power and the fear that she and others will “lose control” over speech:
“Whether it’s Facebook or Twitter or X or Instagram or TikTok, whatever they are, if they don’t moderate and monitor the content we lose total control and it’s not just the social and psychological effects it’s real harm, it’s child porn and threats of violence, things that are terribly dangerous.”
Clinton continues to offer a textbook example of the anti-free speech narrative. While seeking sweeping censorship for anything deemed disinformation, Clinton cites specific examples that are already barred under federal law like child porn.
Despite the amplified message on sites like CNN, most citizens may not be as aggrieved as Clinton that she and her allies could “lose total control” over the Internet. The greater fear is that she and her allies could regain control of social media. The Internet is the single greatest invention for free speech since the printing press. That is precisely why figures like Clinton are panicked over the inability to control it.
If citizens remain true to their values and this indispensable right, Clinton will hopefully continue to face “a long and difficult road to getting anything done” in limiting the free speech of her fellow citizens.
Below is my column in USA Today on the most chilling moment from the Vance-Walz debate when the Democratic nominee showed why he is part of the dream ticket for the anti-free speech movement.
Here is the column:
In the vice-presidential debate Tuesday, Minnesota Gov. Tim Walz pulled the fire alarm. His opponent, Sen. JD Vance, R-Ohio, cited the massive system of censorship supported by Vice President Kamala Harris and her running mate. Walz proceeded to quote the line from a 1919 case in which Supreme Court Justice Oliver Wendell Holmes said you do not have the right to falsely yell fire in a crowded theater. It is the favorite mantra of the anti-free speech movement. It also is fundamentally wrong.
‘Fire in a theater’ case supported government censorship
As I discuss in the book, the line was largely lifted from a brief in an earlier free speech case. It has since become the rationale for politicians and pundits seeking to curtail free speech in America.
For example, when I testified last year before Congress against a censorship system that has been described by one federal court as “similar to an Orwellian ‘Ministry of Truth,’” Rep. Dan Goldman, D-N.Y., interjected with the fire-in-a-theater question to say such censorship is needed and constitutional. In other words, the internet is now a huge, crowded theater and those with opposing views are shouting fire.
Goldman and Walz both cited a case in which socialists Charles Schenck and Elizabeth Baer were arrested and convicted of violating the Espionage Act of 1917. Their “crime” was to pass out flyers in opposition to the military draft during World War I. Schenck and Baer called on their fellow citizens not to “submit to intimidation” and to “assert your rights.” They argued, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” They also described the military draft as “involuntary servitude.”
In the vice-presidential debate, Walz showed that he and other Democratic leaders most certainly do need a class in First Amendment law. As I have said, the Biden-Harris administration has proved to be the most anti-free speech administration in two centuries. You have to go back to John Adams’ administration to find the equal of this administration.
Harris has been an outspoken champion of censorship in an administration that supports targeting disinformation, misinformation and “malinformation.” That last category was defined by the Biden administration as information “based on fact, but used out of context to mislead, harm, or manipulate.”
In the debate, Walz also returned to his favorite dismissal of censorship objections by saying that it is all just inflammatory rhetoric. Recently, Walz went on MSNBC to support censoring disinformation and declared, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” That is entirely untrue and shows a fundamental misunderstanding of the right called “indispensable” by the Supreme Court. Even after some of us condemned his claim as ironically dangerous disinformation, Walz continues to repeat it.
Free speech advocates view Harris as a threat
This is why, for the free speech community, the prospect of a Harris-Walz administration is chilling. Where President Joe Biden was viewed as supporting censorship out of political opportunism, Harris and Walz are viewed as true believers.
We are living through the most dangerous anti-free speech movement in American history. We have never before faced the current alliance of government, corporate, academic and media forces aligned against free speech. A Harris-Walz administration with a supportive Congress could make this right entirely dispensable.
Others are laying the groundwork for precisely that moment. University of Michigan Law School professor and MSNBC legal analyst Barbara McQuade has said that free speech “can also be our Achilles’ heel.”
Columbia law professor Tim Wu, a former Biden White House aide, wrote a New York Times op-ed with the headline, “The First Amendment Is Out of Control.” He told readers that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”
Walz said in the debate that Vice President Harris is promoting the “politics of joy.” Indeed, the wrong people are perfectly ecstatic. Harris and Walz are the dream team for the anti-free speech movement.
Below is my column in the New York Post on the recent remarks of former Secretary of State John Kerry to the World Economic Forum, the latest in an array of powerful American politicians warning about the dangers of free speech and calling for government controls. He joins his fellow former Democratic Presidential Nominee Hillary Clinton in reaching out to the global elite for help in censoring their fellow Americans.
Here is the column:
If you want to know how hostile the global elite are to free speech, look no further than John Kerry’s recent speech to the World Economic Forum. Rather than extol the benefits of democratic liberty versus dictatorships and oligarchs, Kerry called the First Amendment a “major block” to keeping people from believing the “wrong” things.
“You know, there’s a lot of discussion now about how you curb those entities in order to guarantee that you’re going to have some accountability on facts, etc. But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence.
“So, what we need is to win the ground, win the right to govern, by hopefully winning enough votes that you’re free to be able to implement change.”
Free rein on social media
The “freedom” to be won in this election is to liberate officials who like himself can set about controlling what can be said, read or heard. Kerry insisted that the problem with social media is that no one is controlling what they can say or read.“The dislike of and anguish over social media is just growing and growing. It is part of our problem, particularly in democracies, in terms of building consensus around any issue,” he said.
“It’s really hard to govern today. The referees we used to have to determine what is a fact and what isn’t a fact have kind of been eviscerated, to a certain degree. And people go and self-select where they go for their news, for their information. And then you get into a vicious cycle.”
Kerry continued: “Democracies around the world now are struggling with the absence of a sort of truth arbiter, and there’s no one who defines what facts really are.”
It is not clear when in our history we allowed “referees” to “determine what is a fact.”
Since the First Amendment has been in place since 1791, it is hard to imagine when referees were used in conformity with our Constitution. The Founders would have been repulsed by the idea of a “truth arbiter.” Yet it was a pitch that clearly went over big with the crowd at the World Economic Forum.
Located in Geneva, Switzerland, it is funded by over 1,000 member companies around the world. It is the perfect body for the selection of our new governing “arbiters.” The greatest irony was that, after fearmongering about this supposed parade of horrible that comes from free speech, Kerry insisted, “If we could strip away some of the fearmongering that’s taking place and get down to the realities of what’s here for people, this is the biggest economic opportunity.”
It was like Ed Wood denouncing cheesy jump scares in horror movies. Kerry is only the latest Democratic leader or pundit to denounce the First Amendment.
In my book on free speech, I discuss the growing anti-free speech movement being led by law professors and supported by both politicians and journalists. They include Michigan law professor and MSNBC commentator Barbara McQuade, who has called free speech America’s “Achilles’ heel.”
Columbia law professor Tim Wu, a former Biden White House aide, wrote an op-ed declaring “The First Amendment Is Out of Control.” He explained that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”
George Washington University Law’s Mary Ann Franks complains that the First Amendment (and also the Second) is too “aggressively individualistic” and endangers “domestic tranquility” and “general welfare.”
‘Will we break the fever?’
Kerry hit all of the top talking points for the anti-free speech movement. He portrayed the First Amendment as hopelessly out of date and dangerous. He argued that citizens would be far better off if an elite could tell them what was information and what was disinformation.
Other political contemporaries are working on the same problem. Hillary Clinton has called upon Europeans to use the Digital Services Act to force the censoring of Americans. She has also suggested the arrest of Americans who she views as spreading disinformation.
Sen. Elizabeth Warren (D.-Mass.) has called for companies like Amazon to use enlightened algorithms to steer readers to “true” books on subjects like climate change to protect them from their own poor reading choices.
Kerry explained how the true heroes are those poor suffering government officials seeking to protect citizens from unbridled, unregulated thoughts:
“I think democracies are very challenged right now and have not proven they can move fast enough or big enough to deal with the challenges they are facing, and to me, that is part of what this election is all about. Will we break the fever in the United States?”
The “fever” of free speech is undeniably hard to break. You have to convince a free people to give up part of their freedom. To do so, they have to be very angry or very afraid. There is, of course, another possibility: that there is no existential danger of disinformation. Rather there are powerful figures who want to control speech in the world for their own purposes. These are the same rationales and the same voices that have been throughout our history for censorship.
Give me liberty
Each generation of government officials insists that they face some unprecedented threat, whether it was the printing press at the start of our republic or social media in this century. Only the solution remains the same: to hand over control of what we read or hear to a governing elite like Kerry.
In 1860, Frederick Douglass gave a “Plea for Free Speech in Boston,” and warned them that all of their struggles meant nothing if the “freedom of speech is struck down” because “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist.” Douglass denounced those seeking to deny or limit free speech as making their “freedom a mockery.” Of course, Douglass knew nothing of social media, and he certainly never met the likes of John Kerry.
However, if we embrace our new arbiters of truth we deserve to be mocked as a people who held true freedom only to surrender it to a governing elite.
We previously discussed the defamation case against NYU Law Professor and MSNBC legal analyst Andrew Weissmann. He is being sued by lawyer Stefan Passantino after Weissmann said that he coached former Trump White House aide Cassidy Hutchinson to “lie” to Congress. At the time, I wrote that “it is hard to see how Weissmann can avoid a trial.” U.S. District Judge Loren AliKhan apparently agrees. She just rejected Weissmann’s motion to dismiss the case.
The controversial former aide to Special Counsel Robert Mueller (and NYU law professor) is being sued after declaring that attorney Stefan Passantino (who represented Hutchinson before Congress) told her to lie.
Weissmann’s controversial commentary was not a surprise to many critics.
Many of us questioned Mueller hiring Weissmann given his reputation for stretching legal authority and perceived political bias. Weissmann reportedly congratulated acting Attorney General Sally Yates after she ordered the Justice Department not to assist President Donald Trump on his immigration ban. The Supreme Court would ultimately affirm Trump’s underlying authority, but Yates refused to allow the Justice Department to assist a sitting president in defending that authority. Weissmann gushed in an email to her, writing “I am so proud. And in awe. Thank you so much.”
What Weissmann often lacked in precedent, he made up for in hyperbole. That signature is at the heart of the current lawsuit. On September 13, 2023, Weissmann was referring to Judy Hunt and noted on Twitter (now X) that “Hunt also is Cassidy Hutchinson’s good lawyer. (Not the one who coached her to lie).”
In making this claim against Passantino, Weissmann actually triggered the “per se” defamation standard twice. These are categories that have been treated as defamatory per se. The allegation against Passantino would not only constitute criminal conduct but also unethical professional conduct. Passantino denounces the statement as an “insidious lie” and “smear.”
AliKahn noted that “At her fifth deposition, Ms. Hutchinson discussed a line of questioning from her first deposition about the January 6 incident in the Presidential limousine,” AliKhan wrote. “She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, ‘I’m f*****. I just lied.’ Mr. Passantino responded, ‘You didn’t lie. . . . They don’t know what you know, Cassidy. They don’t know that you can recall some of these things. So, you [sic] saying ‘I don’t recall’ is an entirely acceptable response to this.’”
Hutchinson repeatedly confirmed that Passantino “never told me to lie,” “didn’t tell me to lie,” and “He told me not to lie.”
While Judge AliKhan on Monday tossed out the second count in the complaint as lacking foundation for the claim of financial harm, she refused to dismiss Passantino’s defamation claim and moved the case forward toward trial. That could prove embarrassing as Passantino’s team searches for evidence of malice in his emails and other communications.
We have been discussing how colleges and universities have been using security concerns as a way to bar conservative and libertarian speakers. Another barrier has been the imposition of prohibitive security fees as a condition for such speakers to appear on campus, fees generally not required for liberal speakers. Now, in a significant free speech victory, U.S. District Judge David Urias has enjoined the University of New Mexico from imposing a $5,400 security fee for former collegiate swimmer and activist Riley Gaines after speaking on campus. UNM has a history of cancellation campaigns against conservative and libertarian speakers, as previously discussed on this blog.
Gaines has become a national figure in her campaign against biologically male students competing in women’s sports. While it is a position that is supported by an overwhelming majority of Americans, faculty and students have repeatedly targeted Gaines with cancel campaigns and disruptive protests. In this case, UNM originally demanded over $10,000. The lawsuit brought by the Leadership Institute named UNM President Garnett Stokes and other UNM officials as defendants. Judge Urias was legitimately suspicious of the demand and found that it violated the First Amendment.
In his 16-page order in Leadership Institute v. Stokes(D.N.M.), Judge Urias noted that Gaines travels with her own security (itself a sad statement about this Age of Rage). The court noted the rather fluid standard applied to Gaines:
[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to assign every officer to the Gaines event, and whether it was because of the speaker or the inviting organization, he responded that “it’s all based on individual assessments,” that they were looking at the “individual,” and that “there is not a criteria [sic].”
He also told the students that if an organization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were “not worried about the Barbie movie.” He then said that security was “consistent” in how it assessed fees “to Turning Point” in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM assesses security fees on a “case-by-case basis.” …
Notably, the court detailed how fewer than 10 protesters actually showed up and demonstrated outside of the room. Nevertheless, UNM hit Turning Point with the fee for twenty-seven officers at the event who charged for a total of 95.25 hours.
The court applied the holding in Forsyth County v. Nationalist Movement (1992) in which the Supreme Court held that the government can impose extra security fees due to the controversial status of speakers or groups. In writing for a 5-4 majority, Justice Henry Blackmun held that “Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.”
Judge Urias found precisely such a barrier imposed by the UNM:
When a policy allows “appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted[.]” Forsyth County.… Although the question in this case is closer than that in Forsyth, the Court nonetheless finds that Plaintiffs have demonstrated the security fee policy in this case is similar enough to render it overly broad. Although the policy lists criteria for officials to consider when assessing event security, such as venue size and location, the list ultimately leaves the decision of how much to charge for security up to the whim of university officials. For example, the policy does not explain a method for determining how much more security is required for a small venue as compared to a large one, or for a daytime event as compared to a nighttime event.
Significantly, the policy states that the “basic cost of security … will be charged to all groups” based on a schedule of charges that the UNM Police Department has on its website, but despite this, the department does not actually delineate the amount of this “basic cost of security.” Though the security fee policy also states that the police department “regularly” updates the “schedule of charges based on the factors” and that “[t]he basic cost of security according to this schedule will be charged to all groups,” there is no schedule of charges.
Additionally, the preamble to the policy indicates that university officials “may” assess security fees but does not provide guidance for when they may or may not assess these fees, which contributes to the problem of allowing university officials overly broad discretion. In sum, Plaintiffs have shown a substantial likelihood of success on the merits of their overbreadth claim because the security fee policy does not contain limiting language that includes “narrowly drawn, reasonable and definite standards[,]” and it does not include anything to prevent UNM administrators from exercising their discretion in a content-based manner….
The ruling is a notable victory for free speech in creating additional precedent against the use of security fees as a deterrent to groups in inviting targeted speakers like Riley Gaines. Conservative groups have long complained that far left speakers are rarely targeted by cancel campaigns and even more rarely hit with these security fees. In past cases, a security deposit is demanded upfront, creating a barrier for many groups.
Author and cultural critic Fran Lebowitz added voice to the unhinged calls on the left for trashing the Supreme Court. As I discussed recently in the Wall Street Journal (and in my book), there is a growing counter-constitutional movement in the United States led by law professors, pundits, and celebrities. Lebowitz amplified those calls in a radical demand to simply get rid of the Court.
Lebowitz called for President Joe Biden to “dissolve the Supreme Court” despite the fact that it would violate the Constitution and remove one of the most critical protections against executive and legislative abuse. Lebowitz insisted that the Supreme Court is a “disgrace” because, in a reference to Donald Trump, it is “completely his.” To the wild applause of the New York audience, she added: “It’s so disgraceful, this court, that it shouldn’t even be allowed to be called the Supreme Court. It’s an insult to Motown. Basically, it’s a harem. It’s Trump’s harem.” Her views aligned with others on the left who have attacked the Constitution, the Court, and even rights like free speech as now threats to our democracy.
Senate Majority Leader Chuck Schumer previously declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
Rep. Alexandria Ocasio-Cortez (D-NY) announced that she wants the impeachment of all six of the conservative justices. She was immediately joined by other Democratic members. Previously, Ocasio-Cortez admitted that she does not understand why we even have a Supreme Court. She asked “How much does the current structure benefit us? And I don’t think it does.”
Other members, such as Sen. Elizabeth Warren (D-Mass.), have called for packing the Court with additional members to immediately secure a liberal majority to rule as she desires.
Sen. Sheldon Whitehouse (D., RI), has assured voters that Vice President Kamala Harris will support the packing of the Court with a liberal majority.
Despite supporting censorship to combat “disinformation,” many on the left now eagerly spread disinformation about the Court and its rulings. Lebowitz repeated false claims about the Court’s ruling on presidential immunity, stating that the decision makes the president a “king” who “can do whatever you want.”
In reality, the Court followed the same approach that it has taken in prior conflicts between the branches. As it has in the past, the Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
None of these matters. Facts do not matter. Many on the left are calling for the trashing of the Constitution based on wildly inaccurate claims.
Erwin Chemerinsky, dean of the UC Berkeley law school, is author of “No Democracy Lasts Forever: How the Constitution Threatens the United States,” published last month. In a 2021 Los Angeles Times op-ed, he described conservative justices as “partisan hacks.”
In the New York Times, book critic Jennifer Szalai scoffs at what she calls “Constitution worship.” She writes: “Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.” She frets that by limiting the power of the majority, the Constitution “can end up fostering the widespread cynicism that helps authoritarianism grow.”
In a 2022 New York Times op-ed, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to “reclaim America from constitutionalism.”
Lebowitz previously said that Trump should be killed with the help of the Saudi government.
Lebowitz is demonstrably wrong about the voting record of the justices. In reality, the Court continues to rule largely by unanimous, or nearly unanimous decisions. After April, unanimity stood at 46 percent of cases. Of the 22 6-3 decisions, only half broke along ideological lines. That is the same as the 11 such cases last term.
The average for unanimous decisions has been roughly 43 percent. The rate is back up to 48 percent for the last term. When you add the nearly unanimous opinions, it is the vast majority of cases. Moreover, Sotomayor agreed with Roberts in 71% of cases Kavanaugh and Barrett agreed with Sotomayor roughly 70% of the time.
In critical decisions, conservative justices like Gorsuch and Barrett have joined their liberal colleagues and the Court has repeatedly voted against positions supported by Donald Trump.
Again, none of these matters. Lebowitz and others are falsely telling the public that the Court is difunctionally and ideologically divided. Of course, even if you accept the false premise, the problem is not with the liberal justices always voting as a block but the conservatives doing so. The liberals are not robotic, they are simply right.
There is an interesting controversy growing over an alleged eviction by an Airbnb host in Philadelphia of Trump supporters. The conservative site Breitbart is reporting that “ballot chasers” for Trump were allegedly given an hour to clear out after the host learned that they were in Pennsylvania to get out the vote for Trump. If true, the incident raises a serious matter for Airbnb over hosts imposing political conditions for the use of their property.
Once again, we have not heard the other side to this controversy. However, if these allegations are established, it raises a variation of an issue that has been discussed for years on this blog: the role of private companies or businesses in censoring speech or blacklisting individuals.
First for the obvious threshold point. Private property owners have a right to exclude people from their property on any number of issues. This homeowner is likely to be lionized by many who agree with the decision. If an owner wants to run their home like an Airdnc, they have every right to do so. The question is whether they can do so as an Airbnb.
It is worth noting that many of the same individuals supporting this owner likely opposed the right of business owners in cases like Masterpiece Cake Shop and 303 Creative. In those cases, the owners refused to make products for celebrations that conflicted with their religious views.
I have previously written why businesses should have the right of such denial as a matter of free speech, including in my book “The Indispensable Right: Free Speech in an Age of Rage.” In this case, an owner is accused of refusing service or rentals based on political grounds. The question is not whether this owner has the right of exclusion in a home, but whether Airbnb is now allowing such threshold political tests to be applied by owners. It would create an uncertainty for guests who would not know if they may be tossed to the street if they reveal their political viewpoints or affiliations.
The incident could be a type of micro-cancel problem. We have seen universities and colleges cancel conservative and libertarian speakers under pressure from faculty and students who cannot tolerate opposing views from being spoken on campuses. Citizens Alliance’s PA CHASE says that it is still pursuing a requested $5,000 refund.
Airbnb notes in its contractual language that
“Guest identity verification, reservation screening and the 24-hour safety line are tools or features used by Airbnb to help verify guest identities, screen reservations for potential party and property damage risk, and provide access to Airbnb’s 24-hour safety line.”
There is no indication that the group was planning large gatherings at the location. However, it could be cited by the owner.
If the group is mistaken or misrepresenting the facts, Airbnb should make that clear. It should also make clear what its policy is on possible political conditions for Airbnb listings. One possibility is that the owner will argue that he or she did not want the property used for a high-traffic political effort operating out of the home. A homeowner could reasonably demand that the property not be used for large parties or high-traffic enterprises.
Conversely, Citizens Alliance is suggesting that they were simply planning to stay at the home. Moreover, other guests have likely held parties on rented premises without such alleged peremptory action. Notably, Airbnb promises homeowners up to $3 million in insurance for any damage to property. Airbnb has a strong anti-discrimination policy on race but is silent on political viewpoints.
If the host barred Trump supporters due simply to their political affiliations or the purpose of their visit, it would seem inimical to the business model of the company. However, there are difficult hypotheticals on the extremes. For example, what if an owner came to hand over the keys only to find guests wearing KKK or neo-Nazi outfits? What if a pro-life owner learned that the home would be used at the base camp for a pro-abortion campaign? Do they have the right to decline service like a cake shop or web designer?
The difference may be based on the use of the property. Airbnb operates like an aggregated hotel chain using private owners to supply the rooms. Just as Hyatt cannot impose political litmus tests, it is unworkable to allow such a test by individual owners and still maintain a viable national chain.
If this owner was in compliance with Airbnb contractual conditions, the site should make that clear to renters. At a minimum, Airbnb would have to require owners to state upfront any threshold political conditions. That would be a nightmare for the company since the site would turn into a patchwork of threshold exclusions. That would destroy the premise of the site which treats the room stock as uniformly available and only differentiated on physical layout and pricing.
Notably, in cases like Masterpiece Cake Shop, the owner insisted that he would sell pre-made cakes to anyone who wanted to buy them. He only objected to preparing special cakes for ceremonies that contradicted his religious views.
In the same way, Airbnb could make clear that, so long as the property itself will not be used for political or advocacy activities, owners are expected to adopt a non-discriminatory policy on political viewpoints. The cost of renting out your home to strangers is that you will likely disagree with the values of many of the renters.
Airbnb is reportedly still looking at the refund request.
Below is my column in the Hill on the rough week for New York Attorney General Letitia James in court. James has campaigned on lawfare, and the Democratic New York voters have wildly supported her weaponization of the legal system against Trump and others. Now some judges are balking…
Here is the column:
In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents. James first ran for her office by pledging to bag Donald Trump on something, anything. She did not specify the violation, only that she would deliver the ultimate trophy kill for Democratic voters. James follows the view of what Prussian General Carl von Clausewitz said about war, law is merely politics “by other means.”
Yet, the political success of James in weaponizing her office has been in stark contrast with her legal setbacks in courts. James earlier sought to use her office to disband the National Rifle Association, the most powerful gun rights organization in the country, due to self-dealing and corruption of executives. James notably did not target liberal groups accused of similar violations. The ridiculous effort to disband the NRA collapsed in court.
It did not matter. James knew that such efforts were performative and that New York voters did not care if such attacks failed. She will continue to win the lawfare battles, even if she loses the war.
This week, two of James’s best-known campaigns were struggling in court.
James is best known for her fraud case against Trump, in which she secured a $464 million fine and a ban on Trump from the New York real estate business for three years. That penalty, which has now risen to $489 million with interest, was in a case where no one had lost a dime due to the alleged inaccurate property valuations in bank loans secured by the Trump organization. Not only where the banks fully paid on the loans and made considerable profits, but they wanted to make additional loans to the Trump organization.
In appellate arguments this week, James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron. Justice David Friedman noted that this law “is supposed to protect the market and the consumers — I don’t see it here.”
His colleague Justice Peter Moulton told her office “The immense penalty in this case is troubling” and added, “How do you tether the amount that was assessed by [Engoron] to the harm that was caused here where the parties left these transactions happy?”
The answer, of course, is the case was never about markets. It was about politics. The fact that the banks were “happy” is immaterial. Happiness in New York is a political, not legal calculus. The justices did not rule this week, but an opinion could be issued within a month.
In the same week, James faced a stinging defeat in another popular cause. James had targeted pro-life organizations for spreading supposed “disinformation” in not just opposing the use of mifepristone (the abortion pill used in the majority of abortions in the United States), but in advocating the use of reversal procedures if mothers change their minds before taking the second drug in the treatment regimen.
Critics charge that, while there are some studies showing successful reversal cases, the treatment remains unproven and unapproved. It remains an intense debate. James, however, wanted to end the debate. She targeted pregnancy centers and was then sued by two pro-life ministries, Summit Life Outreach Center and the Evergreen Association.
Judge John Sinatra Jr. blocked James‘s crackdown as a denial of free speech. Notably, these centers were not profiting by sharing this information or advocating such reversal treatment. James merely declared that people advocating such reversal treatments are engaged in “spreading dangerous misinformation by advertising…without any medical and scientific proof.”
It is a familiar rationale on the left and discussed in my latest book, “The Indispensable Right: Free Speech in an Age of Rage.”It is the same rationale that led to the banning and blacklisting of experts during the pandemic for views that have now been vindicated on the efficacy of masks and other issues. They were silenced by those who declared their viewpoints as dangerously unproven or unapproved, but who were themselves wrong.
James claimed a right to crack down on views that she deemed unproven, even by those who were seeking only to disseminate information rather than sell products. It did not seem to matter to her that, in the 2018 in NIFLA v. Becerra, the Supreme Court rejected the effort by California Attorney General Xavier Becerra (now the secretary of Health and Human Services) to require crisis pregnancy centers to refer abortions. The court refused to create an exception for requiring speech from licensed professionals.
After the effort failed to force doctors to disseminate pro-abortion information in California, James sought to prevent others from disseminating pro-life information in New York. The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.
If there are harmful or fraudulent products or practices, the government has ample powers to target businesses and professionals involved with them. James, however, was seeking to silence those who advocate for a treatment that is unproven but not unlawful.
James’s legacy now includes an effort to disband a civil rights organization, deny free speech and secure confiscatory fines against her political opponents. Yet she is lionized by the media and politicians in an election that is billed as “saving democracy.”
In the end, James knows her audience, and it is not appellate judges. It does not matter to her if she is found to be violating the Constitution or abusing opponents. She has converted the New York legal system into a series of thrill-kills.
Below is my column in the New York Post on the indictment of Mayor Eric Adams. The most serious charges may be the foreign campaign contributions. However, the indictment is not nearly as overwhelming as suggested by the government. That may be why they are openly threatening Adams associates to cooperate or face ruin.
Here is the column:
The federal five-count indictment of New York Mayor Eric Adams is on its face a damning document of alleged public corruption. The government is alleging that Turkish officials saw Adams as a rising star in the Democratic Party and started to groom him for influence.
However, once beyond the details of the opulent rooms and flight upgrades, there may be less here than meets the eye in some of these charges. The campaign-contribution violations raise serious problems for Adams in the alleged solicitation of unlawful foreign contributions. Yet the counts must be read with caution. We have not seen the specific defenses to the allegations of using “straw men” to funnel unlawful contributions and the alleged favors bestowed on contributors. Indictments are one-sided and highly slanted interpretations of the facts by prosecutors to secure a conviction.
For example, many of the gifts from Turkish sources were realized in the form of upgrades on flights to business class or expensive hotel suites. It is not clear what Adams knew of the logistics for such travel or their inclusion in annual reports. Despite their public personas, many populist politicians tend to be a pampered class who expect to be feted in the best quarters as they speak as the “voice of the people.”
That was captured most vividly by NYC Rep. Alexandria Ocasio-Cortez sashaying at the Met Gala in a designer dress reading “tax the rich.” It was a scene with a crushing irony. The dress itself was worth more than some people make in a year, and it was just “loaned” to AOC despite being made specifically for her. She also did not pay for her ticket, which would cost $35,000.
It triggered an ethics investigation and allegations of ethical violations. In one night, Ocasio-Cortez flaunted roughly half of the value of the alleged Adams gifts as she paraded as a social warrior among the social elite. The truly hilarious aspect was that it was the elite who were thrilled by the demonstration and subsidized it.
The Adams allegations would constitute a fairly crude form of corruption by today’s standards. For the Biden family, it looks like small potatoes. Adams lacked a Hunter and the type of labyrinth of accounts maintained by the Bidens to funnel millions from foreign sources.
One of the most discussed allegations concerns a high-rise building built by Turkish friends in Manhattan to serve as their new consulate. The Turks wanted the building opened before the arrival of the Turkish president in 2021, strongman Recep Tayyip Erdoğan. The problem is that, according to prosecutors, New York Fire Department officials found an array of dangerous defects in the building and believed that it was a fire risk. They refused to allow the building to open until it met those standards. The government alleges that Turkish officials immediately dialed up their well-groomed ally, Adams, and told him that it was “his turn” to support Turkey. Adams intervened and prosecutors say that FDNY officials were afraid for their jobs.
Once again, however, Adams has defenses. He can argue that New York is the home of the United Nations and a large population of diplomats and international organizations. This was a foreign country seeking to open a consulate and he intervened to avoid an embarrassing diplomatic tiff.
Suggesting that a push to cut short fire inspections may be difficult to maintain under a bribery theory. That was the type of expansive case that government attorney Jack Smith used against former Virginia Republican Gov. Robert McDonnell and it failed spectacularly before the Supreme Court. There are other reasons besides flight upgrades why Adams might have facilitated a speed up of building approvals.
In the end, this is a Bob Menendez-lite indictment. Failing to publicly list how you moved from economy to business class on flights is hardly the stuff of “All the King’s Men.” It is more like “All the King’s Upgrades.” The biggest problem for Adams is that the US Attorney’s Office went public with a threat for all of those who do not cooperate and pledged that more will be “held accountable.” In other words, the indictment amplified the tune in a game of musical chairs. Anyone close to Adams may want to sit down before the music stops. That means that Adams can expect close associates to be testifying against him with the enthusiasm of those threatened with ruin by federal prosecutors.
If Eric Adams is convicted, it will be at the hands of his associates. The jury will not be particularly sympathetic with a politician snaring the Bentley Suite at the St. Regis Istanbul. Prosecutors love to play on such opulence like their use of Paul Manafort’s $15,000 Ostrich coat.
Combined with former friends and associates, it may be enough for the ultimate upgrade for Adams from business class to a federal cellblock.
Below is my column in the New York Post on a growing crisis in higher education as enrollments and trust falls. Despite these trends, administrators and faculty appear entirely oblivious and unrepentant. They continue to alienate many in the country who view schools as pursuing indoctrination rather than education.
Here is the slightly expanded column:
In the 1930s, Bertolt Brecht asked “What if they gave a war and nobody came?” As someone who has been a teacher for over 30 years, I find myself increasingly asking the same question as trust and enrollments fall in higher education.
Trust in higher education is plummeting to record lows. According to recent polling, there has been a record drop in trust in higher education since just 2015. Not surprisingly, given the growing viewpoint intolerance on our campuses, the largest drops are among Republicans and Independents. There has been a precipitous decline in enrollments across the country as universities worry about covering their costs without raising already high tuition rates. From 2010 to 2021, enrollments fell from roughly 18.1 million students to about 15.4 million.
There are various contributors to the drop from falling birthrates to poor economic times. However, there is also an increasing view of higher education as an academic echo chamber for far-left agendas. For many, there is little appeal in going to campuses where you are expected to self-censor and professorsreject your values as part of their lesson plans. That fear is magnified by surveys showing that many departments have purged their ranks of Republicans, conservatives, and libertarians.
One survey (based on self-reporting) found that only nine percent of law professors identified as conservative. Some anti-free speech advocates are actually citing higher education as a model for social media in showing how “unlikeable voices” have been eliminated. Many of those “unlikeable” people are now going elsewhere as schools focus on degrees in activism and denouncing math, statistics, the classics, and even meritocracy as examples of white privilege.
Schools offering classic education are experiencing rising enrollments, but the growing crisis has not changed the bias in hiring and teaching. Despite repeated losses in courts, universities and colleges continue to deny free speech and diversity of thought. The fact is that this academic echo chamber may be killing educational institutions, but the intolerance still works to the advantage of faculty who can control publications, speaking opportunities, and advancement with like-minded ideologues.
It does not matter that this advocacy journalism is killing the profession. Reporters and editors continue to saw at the limb upon which they sit due to the same advantage for academics. For reporters, converting newsrooms into echo chambers gives them more security, advancement, and opportunities.
Recently, the new Washington Post publisher and CEO William Lewis was brought into the paper to right the ship. He told the staff “Let’s not sugarcoat it…We are losing large amounts of money. Your audience has halved in recent years. People are not reading your stuff. Right. I can’t sugarcoat it anymore.” The response from reporters was to call for owner Jeff Bezos to fire Lewis and others seeking to change the culture. The Post has been eliminating positions and just implemented another round of layoffs to address the budget shortfalls.
In the meantime, trust in the media is at record lows — paralleling the polling on higher eduction. The result is the rise of new media as people turn to blogs and other sources for their news.
The same phenomenon is occurring in academia. People are now evading campuses with online programs. For those of us who believe in brick and mortar educational institutions, we may be watching a death spiral for some universities and colleges as administrators and faculty treat their students as a captive audience for their ideological agendas.
In the meantime, alternative educational opportunities are seeing a rapid rise. Take the Catherine Project, a project started four years ago, to offer free discussions of classic works that is also free from ideological indoctrination. The project has reportedly doubled in size since 2022.
With online educational technology, universities and colleges no longer have a monopoly on education. People have choices and they are increasingly choosing alternatives. To paraphrase Lewis, “let’s not sugarcoat it…People are not [buying our] stuff.”
We are killing our institutions through an abundance of ideology and a paucity of courage. Recently, interim Columbia President Katrina Armstrong actually apologized to students who took over and trashed a building in pro-Palestinian protests.
During the protests, a Jewish Columbia professor was blocked by the school from going on campus because he might trigger anti-Semitic students. Yet, Armstrong apologized for the alleged abuse of police and the role of the university in allowing them to be harmed, adding “I know it wasn’t me, but I’m really sorry.… I saw it, and I’m really sorry.”
Like many conservatives and libertarians, Jewish students and families are now reportedly looking for alternatives to schools like Columbia.
What is clear is that many administrators and departments will continue to bar opposing views and maintain the academic echo chamber. Many have tenure and expect to ride out the decline of their institutions while enjoying the acclaim of being academic crusaders. Of course, it will become increasingly hard to be social warriors if you hold a war and nobody comes.
Below is my column in the Wall Street Journal on the growing counter-constitutional movement in the United States. This assault on the Constitution is being led by law professors who have lost their faith in the defining principles and institutions of our Republic.
Here is the column:
Kamala Harris declared in Tuesday’s debate that a vote for her is a vote “to end the approach that is about attacking the foundations of our democracy ’cause you don’t like the outcome.” She was alluding to the 2021 Capitol riot, but she and her party are also attacking the foundations of our democracy: the Supreme Court and the freedom of speech.
Several candidates for the 2020 presidential nomination, including Ms. Harris, said they were open to the idea of packing the court by expanding the number of seats. Mr. Biden opposed the idea, but a week after he exited the 2024 presidential race, he announced a “bold plan” to “reform” the high court. It would pack the court via term limits and also impose a “binding code of conduct,” aimed at conservative justices.
Ms. Harris quickly endorsed the proposal in a statement, citing a “clear crisis of confidence” in the court owing to “decision after decision overturning long-standing precedent.” She might as well have added “because you don’t like the outcome.” Sen. Sheldon Whitehouse (D., R.I.) has already introduced ethics and term-limits legislation and said Ms. Harris’s campaign has told him “That your bills are precisely aligned with what we are talking about.”
The attacks on the court are part of a growing counter constitutional movement that began in higher education and seems recently to have reached a critical mass in the media and politics. The past few months have seen an explosion of books and articles laying out a new vision of “democracy” unconstrained by constitutional limits on majority power.
Erwin Chemerinsky, dean of the UC Berkeley law school, is author of “No Democracy Lasts Forever: How the Constitution Threatens the United States,” published last month. In a 2021 Los Angeles Times op-ed, he described conservative justices as “partisan hacks.”
In the New York Times, book critic Jennifer Szalai scoffs at what she calls “Constitution worship.” She writes: “Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.” She frets that by limiting the power of the majority, the Constitution “can end up fostering the widespread cynicism that helps authoritarianism grow.”
In a 2022 New York Times op-ed, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to “reclaim America from constitutionalism.”
Others have railed against individual rights. In my new book on free speech, I discuss this movement against what many professors deride as “rights talk.” Barbara McQuade of the University of Michigan Law School has called free speech America’s “Achilles’ heel.”
In another Times op-ed, “The First Amendment Is Out of Control,” Columbia law professor Tim Wu, a former Biden White House aide, asserts that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”
George Washington University Law’s Mary Ann Franks complains that the First Amendment (and also the Second) is too “aggressively individualistic” and endangers “domestic tranquility” and “general welfare.”
Mainstream Democrats are listening to radical voices. “How much does the current structure benefit us?” Rep. Alexandria Ocasio-Cortez (D., N.Y.) said in 2021, explaining her support for a court-packing bill. “I don’t think it does.” Kelley Robinson, president of the Human Rights Campaign, said at the Democratic National Committee’s “LGBTQ+ Kickoff” that “we’ve got to reimagine” democracy “in a way that is more revolutionary than . . . that little piece of paper.” Both AOC and Ms. Robinson later spoke to the convention itself.
The Nation’s Elie Mystal calls the Constitution “trash” and urges the abolition of the U.S. Senate. Rosa Brooks of Georgetown Law School complains that Americans are “slaves” to the Constitution.
Without counter majoritarian protections and institutions, politics would be reduced to raw power. That’s what some have in mind. In an October 2020 interview, Harvard law professor Michael Klarman laid out a plan for Democrats should they win the White House and both congressional chambers. They would enact “democracy-entrenching legislation,” which would ensure that “the Republican Party will never win another election” unless it moved to the left. The problem: “The Supreme Court could strike down everything I just described, and that’s something the Democrats need to fix.”
Trashing the Constitution gives professors and pundits a license to violate norms. The Washington Monthly reports that at a Georgetown conference, Prof. Josh Chafetz suggested that Congress retaliate against conservative justices by refusing to fund law clerks or “cutting off the Supreme Court’s air conditioning budget.” When the audience laughed, Harvard’s Mr. Doerfler snapped back: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.”
The cry for radical constitutional change is shortsighted. The constitutional system was designed for bad times, not only good times. It seeks to protect individual rights, minority factions and smaller states from the tyranny of the majority. The result is a system that forces compromise. It doesn’t protect us from political divisions any more than good medical care protects us from cancer. Rather it allows the body politic to survive political afflictions by pushing factions toward negotiation and moderation.
When Benjamin Franklin said the framers had created “a republic, if you can keep it,” he meant that we needed to keep faith in the Constitution. Law professors mistook their own crisis of faith for a constitutional crisis. They have become a sort of priesthood of atheists, keeping their frocks while doffing their faith. The true danger to the American democratic system lies with politicians who would follow their lead and destroy our institutions in pursuit of political advantage.
Below is my column in The Hill on a growing crisis at the Supreme Court for Chief Justice John Roberts. A new breach of confidentiality shows cultural crisis at the Court. While the earlier leaking of the Dobbs decision could have come from a clerk, much of the recent information could only have originated with a justice.
Here is the column:
Chief Justice John Roberts has always been “a man more sinned against than sinning.” That line from Shakespeare’s “King Lear” seems increasingly apt for the head of our highest court. Roberts was installed almost exactly 20 years ago and soon found himself grappling with a series of controversies that have rocked the court as an institution. He is now faced with another monumental scandal, after the New York Times published leaked confidential information that could only have come from one of the nine members of the court.
By most accounts, Roberts is popular with his colleagues and someone with an unquestioning institutional knowledge and loyalty. He is, in many respects, the ideal chief justice: engaging, empathetic, and unfailingly respectful of the court’s justices and staff. Roberts has been chief justice during some of the court’s most contentious times. Major decisions like overturning Roe v. Wade (which Roberts sought to avoid) have galvanized many against the court.
According to recent polling, fewer than half of Americans (47 percent) hold a favorable opinion of the court (51 percent have an unfavorable view). Of course, that level of support should inspire envy in the court’s critics in Congress (18 percent approval) and the media (which only 32 percent trust).
Some, however, want to express their dissatisfaction more directly and even permanently. This week, Alaskan Panos Anastasiou, 76, was indicted with 22 federal charges for threatening to torture and kill the six conservative justices. Another man, Nicolas Roske, 28, will go on trial next June for attempting to assassinate Associate Justice Brett Kavanaugh.
In the meantime, law professors have rallied the mob, calling for them to be more aggressive against the conservative justices and even calling for Congress to cut off their air conditioning to make them retire.
Politicians have also fueled the rage against the court. On one infamous occasion, Senate Majority Leader Chuck Schumer (D-N.Y.) declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
Yet, it is what has occurred inside the court that should be most troubling for Roberts. On May 2, 2022, someone inside the court leaked to Politico a copy of the draft of the opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. It was one of the greatest breaches of ethics in the court’s history. The subsequent investigation failed to produce any charges for the culprit or culprits.
Now, the New York Times has published highly detailed accounts of the internal deliberations of the court. The account seemed largely directed at the conservative justices and Roberts. Some of the information on deliberations in three cases (Trump v. Anderson, Fischer v. United States, and Trump v. United States) had to come either directly or indirectly from a justice. Some of these deliberations were confined to members of the court.
Seeing a pattern in this and past leaks, one law professor, Josh Blackmun, even went so far as to suggest that it is “likely that [Justice Elena] Kagan, or at least Kagan surrogates, are behind these leaks.” That remains pure speculation. Yet after the earlier Dobbs leak, Roberts is now dealing with leaks coming out of the confidential conference sessions and memoranda of the justices. This occurs after Roberts pledged that security protocols had been strengthened to protect confidentiality.
The disclosure of this information to third parties violates Canon 4(D)(5) of judicial ethics: “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.”
Roberts and the court have long maintained that judicial ethics rules that apply to other federal judges are merely advisory for them. However, some in Congress are now pushing for new binding ethics rules that could make fundamental changes to the court. Justice Kagan is supporting the ethical changes, which would allow lower court judges to render judgment on the justices. Justice Ketanji Brown Jackson also declared publicly that she does not “have any problem” with an enforceable ethics code for the Supreme Court.
A truly “enforceable” code would presumably allow the lower court judges appointed by the chief justice to compel the removal of a justice from a given case. That could flip the outcome on a closely divided court.
Given the latest leak, what would such a panel do with a justice who has breached the confidentiality of internal judicial deliberations? Under the Constitution, a justice can be removed by Congress only through impeachment. Impeachment of a justice has happened only once, in 1805, when Associate Justice Samuel Chase was acquitted.
Roberts has the demeanor and decency of a great chief justice. Despite those strengths, however, some are now wondering if he has the drive and determination to confront his colleagues on a worsening situation at the court. Many years ago, I believed that Roberts erred in failing to publicly rebuke Justice Samuel Alito for publicly displaying disagreement with President Barack Obama during a State of the Union address. Although I was sympathetic with Alito’s objections to Obama’s misleading statements about the Citizens United ruling, it was still a breach of judicial decorum.
Roberts is a good chief in bad times. He can hardly be blamed for the alleged abandonment of the most fundamental ethical principles by justices or clerks. Yet, the court is now in an undeniable crisis of faith. For decades, institutional faith and fealty have maintained confidentiality and civility. Once again, that tradition has been shattered by the reckless and self-serving conduct of those entrusted with the court’s business.
For a man who truly reveres the court, it is an almost Lear-like betrayal of an isolated and even tragic figure. It is time for an institutional reckoning for Roberts in calling his colleagues to account.
While there have been a few prior leaks, the Supreme Court has been largely immune from the weaponized leaks so characteristic of Washington. In a city that floats on leaks, the court was an island of integrity. And more has been lost at the court than just confidentiality. There is a loss of confidence, even innocence, at an institution that once aspired to be something more than a source for the New York Times.
California has triggered the first lawsuit over its controversial new laws that require social media companies to censor fake images created by artificial intelligence, known as deepfakes as well as barring the posting of images. A video creator is suing the State of California after his use of a parody of Vice President Kamala Harris was banned. The law raises serious and novel constitutional questions under the First Amendment.
Gov. Gavin Newsom signed A.B. 2839, expanding the time period that bars the knowing posting of deceptive AI-generated or manipulated content about the election. He also signed A.B. 2655, requiring social media companies to remove or label deceptive or digitally altered AI-generated content within 72 hours of a complaint. A third bill, A.B. 2355, requires election advertisements to disclose whether they use AI-generated or manipulated content.
The American Civil Liberties Union of California, Foundation for Individual Rights and Expression (FIRE), the California News Publishers Association and the California Broadcasters Association opposed the legislation on first amendment grounds.
Elon Musk recently reposted the image of Christopher Kohls, who he defended as fighting for that “absolute Constitutional right to lampoon politicians he believes should not be elected.”
Kohls objected that the new law requires a new font size for the labeling that would fill up the entire screen of his video.
In the complaint below, Kohls noted “[w]hile the obviously far-fetched and over-the-top content of the video make its satirical nature clear, Plaintiff entitled the video ‘Kamala Harris Campaign Ad PARODY.’”
AB 2389 covers “deepfakes,” when “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.”
The exceptions for satire, parody, and news reporting only apply when they are accompanied by a disclaimer. The law is vague and could be used to cover a wide array of political speech. It is not clear what defines satire or parody under the exception. Likewise, “materially deceptive content,” is defined as “audio or visual media that is digitally created or modified, and that includes, but is not limited to, deepfakes and the output of chatbots, such that it would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.”
The Kohls complaint argues that the law flips the burden to creators to establish a defense.
One of the more interesting legal issues is how the law defines “malice.” The legislators lifted the definition from New York Times v. Sullivan on defamation to define the element as the statute requires “malice.” This term does not require any particular ill-intent, but instead applies a definition of “knowing the materially deceptive content was false or with a reckless disregard for the truth.”
That is the long-standing standard for public officials and public figures subject to the higher standard of defamation. However, it is not clear that it will suffice for a law with potential criminal liability and a law with sweeping limits on political speech.
Opinion and satire are generally exempted from defamation actions. Satire can sometimes be litigated as a matter of “false light,” but the standard can become blurred. The intent is clearly to create a false impression of the speaker in making fun of a figure like Harris. Drawing lines between honest and malicious satire is often difficult. Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.
For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.
In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”
This line is equally difficult under the tort’s standard for the commercial appropriation of use or likeness.
Parody and satire can constitute appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.
There is also the interesting question of when disclaimers (which are often upheld) ruin the creative message. The complaint argues:
“Disclaimers tend to spoil the joke and initialize the audience. This is why Kohls chooses to announce his parody videos from the title, allowing the entire real estate of the video itself to resemble the sorts of political ads he lampoons. The humor comes from the juxtaposition of over-the-top statements by the AI generated ‘narrator,’ contrasted with the seemingly earnest style of the video as if it were a genuine campaign ad.”
The complaint below has eight counts from (facial and applied) challenges under the First Amendment to due process claims under the Fourteenth Amendment.
We previously discussed Shellyne Rodríguez , the machete-wielding former Hunter College professor. Rodríguez is back with a large following shown in a video with protesters chanting with her about “slitting the throats of the masters.” We previously discussed a videotape of Rodríguez trashing a pro-life student display in New York. Before attacking the table, she told the students, “You’re not educating s–t […] This is f–king propaganda. What are you going to do, like, anti-trans next? This is bulls–t. This is violent. You’re triggering my students.”
The videotape revealed one other thing. At Hunter College, and at other colleges, it seems that trashing a pro-life student display and abusing pro-life students is not considered a firing offense. Hunter College refused to fire Rodríguez.
The PSC Graduate Center, the labor organization of graduate and professional schools at the City University of New York, supported that decision and said Rodríguez was “justified” in trashing the display, which the organization described as “dangerously false propaganda” and “disinformation.”
Rodríguez later put a machete to the neck of a reporter, threatened to chop him up and then chased a news crew down a street with the machete in hand. Somewhere between the machete to the neck and chasing the reporters down the street, Hunter College finally decided that Rodríguez had to go.
Rodríguez denounced the school for having “capitulated” to “racists, white nationalists, and misogynists.” She explained that her firing was just a continuation of “attacks on women, trans people, black people, Latinx people, migrants, and beyond.”
The Cooper Union, however, refused to sever ties with Rodríguez, 47, and decided that she should continue to teach her students. Later it too fired Rodriguez after continued radical conduct. However, according to the New York Post, Rodriguez attributed her firing to her anti-Israeli comments. She declared:
“Cooper Union has fired me because of a social media post I made about ‘Zionists’… effective immediately. This is fascism. Ya’ll are learning about it in real time. Stay strong, [stay] brave, stay defiant, don’t bite your tongue, and drink plenty of water! Pa-lante!”
Before watching this video, it is important to keep in mind that the faculty members and administrators previously wanted Rodríguez as a colleague.
In a video on X shared by journalist Andy Ngo, Rodríguez leads a group of pro-Palestinian protesters in chanting “Our ancestors … dreamed of us slitting the master’s throat.” The scene shows a clearly unhinged Rodríguez who is not just supported by these protesters but clearly thrilling them with her rage rhetoric.
NYC, Sept. 20 — Shellyne Rodriguez, the far-left academic who put a machete to the throat of a NYPost reporter last year, lead a crowd outside the Brooklyn Museum in chanting: “Our ancestors dreamed of us, slitting the masters throat.” Video by @L2FTV: pic.twitter.com/iEwl5UhZtz
Rodríguez leads the pro-Palestinian protesters in anti-police chants:
“Our ancestors are horrified to see black people, Latinx people, indigenous people, children of migrants, and Muslims joining the slave patrol NYPD and [inaudible] plantation overseers in the jails and prisons.”
For a person who chased reporters with a machete, it is a curious choice for a speaker against violence. However, Rodríguez is clearly revered by the crowd. The fact that she pleaded guilty to harassment and menacing charges clearly did not reduce her popularity. To the contrary, for some, it may have increased it.
This was the person that two colleges wanted on their faculties and resisted efforts to fire her, even after trashing a table in an insane diatribe against pro-life advocates. She is the person that the PSC Graduate Center declared was “justified” in her violence against those peaceful advocates.
International Judo Federation (IJF) has suspended a Serbian judo champion for five months from any international competitions for making the sign of the cross after his match in the Paris Olympic games this year. It is another bizarre controversy from the games, including France barring French Muslim athletes from wearing hijabs in competition.
Nemanja Majdov, 28, has been told that he was found guilty of “having shown a clear religious sign when entering the field of play.”
“In the defense letter of the disciplinary proceedings, I did not want to apologize… and of course, I did not, nor will I ever, although I did not even know what the punishment could be. The Lord has given me everything, both for me personally and for my career, and he is number 1 for me, and I am proud of that. And that will not change under any circumstances. Glory to Him, and thanks for everything. Nothing new for me personally, just a new page in my career and a new life experience. I’m sorry that such a beautiful and difficult sport like judo has fallen to such things. God gave me a great career, 7 European and three world medals. When I started, I dreamed of winning at least one big medal and thus succeeding in my life and the life of my family, who sacrificed everything for my career. He gave us a lot more and even borrowed too much so that I would bow my head in front of them when it came either-or.”
The athlete was previously warned not to make the sign of the cross. The IJF said that this is simply an effort to ensure its members “feel respected and accepted.”
I am not sure how that tracks. Athletes expressing their faith does not condone other faiths or belittle competitors. It shows that their accomplishments are not their own. They may want to embrace their friends, their country, or their faith.
I fail to see how denying such gestures advances the game or its values. Part of these games is to respect our different values and cultures. While that justifiably means that the games do not officially endorse or demonstrate religious values, individual athletes should be able to acknowledge their faith in such small gestures. If we want to embrace the diversity of our world, the solution is not to bar expression of diverse values.
It appears that faith may move mountains, but not the Olympics.
Today I was addressing federal and state judges in Ohio on the Supreme Court, including the threatening environment faced by the justices. In the middle of the speech, the media reported that an Alaska man was arrested for threatening to assassinate six members of the Supreme Court and harm two family members. While the government has not confirmed the identities of the justices, some media outlets are reporting, that Panos Anastasiou, 76, threatened the six conservative justices.
The vile threats targeted Thomas (who is apparently Supreme Court Justice 1) using racist language and lynching threats, including one reading “Hopefully N—– [Supreme Court Justice 1] and his white trailer trash n—– loving wife insurrectionist wife are visiting.”
Politicians and pundits have continued to fuel the rage in our society, including attacks on the justices. In one infamous occasion, Senate Majority Leader Chuck Schumer stood in front of the Court and declared “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price!” Schumer warned. “You won’t know what hit you if you go forward with these awful decisions.”
We have continued to follow the attacks and arrests of Antifa followers across the country. Some Democrats have played a dangerous game in supporting or excusing the work of Antifa, one of the most violent anti-free speech groups in the world. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany.
On a nightly basis, pundits accuse the justices of “killing democracy” or support a coup — hyperbolic language that is taken as true by many in society. That audience includes many who believe that the rage gives them license to save the Republic by killing such threats. I have previously stated that his reckless rhetoric has increased the threat against justices, including some who have had to wear bullet-proof vests to simply go out into the public.
Today I discussed how violent rhetoric against the Court is on the rise. In addition, people are normalizing violence amid polarizing political claims. Some 52% of Biden supporters say Republicans are now a threat to American life while 47% of Trump supporters say the same about Democrats. At the same time, 26 million Americans now reportedly view violence as justified. Even law professors and other academics are embracing more aggressive stances toward the justices.
Georgetown Law Professor Josh Chafetz and others are interested in taking a more active approach to making continuation on the Court as unpleasant as possible — at least for conservatives. Chafetz previously declared that the “mob is right” in targeting and harassing justices, and he told a law school panel in 2022 that “I want to suggest that courts are the enemy, and always have been.” He suggested that Congress should retaliate against conservative justices by considering the withdrawal of funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.” When the audience laughed at that absurd suggestion, it reportedly triggered fellow panelist and Harvard law professor Ryan Doerfler, who shot back at the crowd: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.” He added that liberals should destroy the idea that the Court is an “untouchable entity and you’re on the road to authoritarianism if you stand up against it.”
Other academics have engaged in or simply brush off objections to violence.
Speaking on MSNBC’s The Rachel Maddow Show this week, Clinton was asked about continued allegations of Russian efforts to disseminate Russian propaganda in the United States. Clinton responded:
Hillary Clinton has long been one of the most anti-free speech figures in American politics, including calling upon European officials to force Elon Musk to censor American citizens under the infamous Digital Services Act (DSA). She is now suggesting the arrest of Americans who spread what she considers disinformation. It is a crushingly ironic moment since it was her campaign that funded the infamous Steele dossier and spread false stories of Russian collusion during her presidential campaign. Presumably, that disinformation would not be treated as criminal viewpoints.
“I think it’s important to indict the Russians, just as Muller indicted a lot of Russians who were engaged in direct election interference and boosting Trump back in 2016. But I also think there are Americans who are engaged in this kind of propaganda. And whether they should be civilly or even in some cases criminally charged is something that would be a better deterrence, because the Russians are unlikely, except in a very few cases, to ever stand trial in the United States.”
The interview was chillingly consistent with Clinton long antagonism toward free speech.
START AROUND THE 9TH MINUTE. SHE WANTS AMERICANS LIKE ME PROSECUTED FOR PUBLISHING THE TRUTH.
Clinton, of course, was not challenged by Maddow on the fact that her campaign was the conduit for disinformation linked to Russian intelligence services. Not only did U.S. intelligence believe that the Clinton campaign was used to make the debunked claims, but it was clearly done for purely political purposes.
Clinton efforts were so obvious by July 2016 that former CIA Director John Brennan briefed former President Obama on Hillary Clinton’s alleged “plan” to tie then-candidate Donald Trump to Russia as “a means of distracting the public from her use of a private email server.” The Russian investigation was launched days after this briefing.
(MSNBC/via YouTube)
Her general counsel, Marc Elias, his former partner Michael Sussmann, and the campaign were later found involved in not just spreading the false claims from the Steele dossier but other false stories like the Alfa Bank conspiracy claim.
It was Elias who managed the legal budget for the campaign. We now know that the campaign hid the funding of the Steele dossier as a legal expense.
New York Times reporter Ken Vogel said that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said that Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Elias was also seated next to John Podesta, Clinton’s campaign chairman, when he was asked about the role of the campaign, he denied categorically any contractual agreement with Fusion GPS. Even assuming that Podesta was kept in the dark, the Durham Report clearly shows that Elias knew and played an active role in pushing this effort.
The Clinton campaign lied to the media, spread false claims of Russian disinformation, and was accused of being a conduit for Russian intelligence. So, would the “better deterrence” have been for Clinton herself to be arrested?
Sussmann ultimately did stand trial but was acquitted. Notably, John Durham noted that “no one at Fusion GPS … would agree to voluntarily speak with the Office” while both the DNC and Clinton campaign invoked privileges to refuse to answer certain questions.
For a person who is on her fourth memoir, Clinton is remarkably hostile to free speech. Notably, in all of these memoirs, she does not address her prominent role in calling for the censorship and now arrest of those with opposing views. She also does not discuss how her campaign lied to the media and funded the Steele dossier. Perhaps that is coming in the fifth memoir. What is clear is that Clinton herself has no fear that such prosecution would ever await her. She is one of those who may silence others but not be silenced. The public is to be protected from views that she deemed disinformation, misinformation, or malinformation.
To that end, as one of the guardians of truth, Clinton chastised the media for not being more consistently anti-Trump, a daunting prospect since the media has been accused of running almost 90 percent negative stories on Trump. Nevertheless, shortly after the second assassination attack on Trump, Clinton called Trump a danger to the world and added that “I don’t understand why it’s so difficult for the press to have a consistent narrative about how dangerous Trump is.”
Ideally, between the arrests of those accused of disinformation and an effective state media, Clinton hopes to rein in errant thoughts and viewpoints.
In the interview, Maddow did not have even a slight objection to the implications of arresting people with criminal viewpoints. Censorship and criminal prosecutions are such mainstream concepts that they are as unsurprising as a fourth Clinton memoir.
A poll released by the University of Chicago via the Chicago Project on Security and Threats offers a chilling account of the growing radicalism in America, particularly after the second foiled assassination attempt of former president Donald Trump, the poll found that 26 million Americans believe “the use of force” is justified to keep Trump from regaining the presidency.
As discussed in my book, “The Indispensable Right: Free Speech in an Age of Rage,” we have seen an increasing level of rage rhetoric in our political system. For some, violent language can become violent action. There is a normalization that can occur as extreme actions become more acceptable to more and more citizens:
“We are living in an age of rage. It permeates every aspect of our society and politics. Rage is liberating, even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others. Rage is often found at the farthest extreme of reason. For those who agree with the underlying message, it is righteous and passionate. For those who disagree, it is dangerous and destabilizing.”
With the unrelenting claims of President Joe Biden, Vice President Kamala Harris, and others that democracy is about to die in America, some now feel a license to commit criminal acts in the name of “saving democracy.”It is the ultimate form of self-delusion that one saves democracy by committing political violence against those with whom you disagree. We have seen this radicalism spread in past years from higher education into society at large.
At Hunter College in New York, Professor Shellyne Rodríguez was shown trashing a pro-life display of students. She was captured on a videotape telling the students that “you’re not educating s–t […] This is f–king propaganda. What are you going to do, like, anti-trans next? This is bulls–t. This is violent. You’re triggering my students.” Unlike the professor, the students remained calm and respectful. One even said “sorry” to the accusation that being pro-life was triggering for her students. Rodríguez continued to rave, stating, “No you’re not — because you can’t even have a f–king baby. So, you don’t even know what that is. Get this s–t the f–k out of here.” In an Instagram post, she is then shown trashing the table.
Another recent example comes from the State University of New York at Albany, where sociology professor Renee Overdyke shut down a pro-life display and then resisted arrest. One student is heard screaming, “She’s a [expletive] professor.” That of course is the point.
While Democratic leaders have condemned the second assassination attempt on Trump, they have continued the unhinged rhetoric of how this may be our last election and democracy is about to die in America. At the same time, some leaders have allied themselves with violent groups.
Some Democrats have played a dangerous game in supporting or excusing the work of Antifa, one of the most violent anti-free speech groups in the world. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany.
Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of violent protests. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”
These politicians are playing a dangerous game in toying with groups like Antifa, which will not stop at threatening their opponents. Politicians like Ellison could easily find themselves the next target as groups seek to “strike fear in the heart” of the establishment.
Below is my column in The Hill on the controversial role played by the ABC moderators in the presidential debate. Three false claims in the debate continue to be repeated in what is now our post-truth political environment. (ABC later challenged another claim by Harris on the deployment of U.S. troops).
Here is the column:
“You are entitled to your opinion. But you are not entitled to your own facts.”
That famous line from Sen. Daniel Patrick Moynihan (D-N.Y.) remains a virtual mantra for politicians and pundits. Yet, judging from the presidential debate between former President Donald Trump and Vice President Kamala Harris, we have officially entered the post-truth political era. ABC News has been widely criticized for the bias of the two moderators Linsey Davis and David Muir. Even liberal outlets acknowledged that the two journalists seemed inclined to “fact check” only Trump. In the meantime, they allowed clearly false statements from Harris to go unchallenged.
Three of the unchecked claims are being widely disseminated by supporters, including some in the media. Here are three legal “facts” that are being repeated despite being clearly untrue.
“Crime is down under the Biden-Harris administration. “
One of the most notable slap downs by ABC followed Trump commenting that crime rates have drastically risen during the Biden-Harris administration. Muir immediately balked and declared: “As you know, the FBI says overall violent crime is coming down in this country.”
Harris and her allies have been repeating the claim by ABC. But the actual statistics show that Trump was right. The Justice Department’s released survey found that, under the Biden administration, there has been a significant increase in crime. Violent crime was up 37 percent from 2020 to 2023, rape is up 42 percent, robbery is up 63 percent, and stranger violence is up 61 percent. Other reports had shown startling increases such as a doubling of carjackings in D.C. in 2023.
“Harris has not supported transgender operations for undocumented migrants.”
Some of the greatest mocking in the media concerned Trump’s statement that Harris has supported transgender conversion treatment for undocumented persons. New Yorker staff writer Susan Glasser immediately wrote “What the hell was he talking about? No one knows, which was, of course, exactly Harris’s point.” On CNN, Wolf Blitzer declared how “outlandish” it was for Trump to make such a claim.
But it’s true.
In 2019, Harris told the ACLU that she not only supported such operations but actively worked for at least one such procedure to take place. When it was reported by Andrew Kaczynski on CNN, host Erin Burnett was gobsmacked by the notion of taxpayer-funded gender transition surgeries for detained migrants. “She actually supported that?” Burnett exclaimed. Even the New York Times later admitted that the “wildest sounding attack line” from Trump was “basically true.”
Harris does not support the right to abortion in the final three months of a pregnancy.
Trump also hit Harris on her no-limits position on abortion rights, allowing women the right to abort a baby up to the moment of birth. Trump said Harris supports laws allowing abortions in “the seventh month, the eighth month, [and] the ninth month,” to which Harris retorted: “C’mon,” “no,” and “that’s not true.” The hosts again said that Trump was making up his criticism of late-term abortions, including the risk of babies being born but allowed to die.
But in fact, many states, including Minnesota under Gov. Tim Walz (D), protect the right of a woman to abort a baby into the ninth month. While it is often said that this is left to the mother and her doctor, the law gives the decision to the mother.
More than a dozen states, in fact, allow on-demand abortions after a baby is viable and can even survive outside of the womb. Nine of those states permit abortions throughout the entirety of pregnancy. Harris has supported these state laws and certainly did not answer the question on what limits she would support, other than saying that she supports Roe v. Wade.
Clearly, many late-term abortions occur to protect the life of the mother. However, you can have (as both Trump and Harris support) exceptions to protect the life of the mother without allowing abortions up to the moment of birth.
To be sure, Trump did not help himself with his wilder claims. These included debunked accounts of Haitian migrants eating people’s pets in Ohio, which Ohio’s Republican governor, Mike Dewine, has denied.
The issue is not fact-checking, but the failure to do so equally and accurately. ABC actually disseminated false information under the mantle of fact-checking, and that’s a real problem.
Moderator Linsey Davis admitted later that ABC did not want a repeat of what had happened in the last debate, wherein Trump was given free rein and the moderators limited themselves to asking questions and enforcing time limits. CNN was praised in that debate across the political spectrum for being even-handed.
What is most striking about this election is that none of this seems to matter. Indeed, even the debate did not matter. While Trump can legitimately object to a three-against-one debate format, Harris’s victory was clearly not dependent on bad calls by the refs. However, there has been little overall movement in the polls, even though 67 million people were watching.
The era of post-truth politics is evident in Harris repeating false claims about Trump’s support for “Project 2025” and debunked claims regarding his comments about an extreme-right Charlottesville rally in 2017. Leading Democrats continue to make these false claims, in some cases despite knowing that they are false.
On the other side, Trump is making promises he has to know can never be fulfilled. For example, he has pledged to make flag-burning a federal crime with a penalty of two years’ incarceration. The Supreme Court, including conservatives like the late Justice Antonin Scalia, has ruled that flag burning is protected speech under the First Amendment. Neither a president nor Congress can change the meaning of the Constitution without amending it.
With the help of the media, we have reduced our election to a political Slurpee. It’s all sugar rush and no nutritional value. We now have pundits supporting the idea of no further debates and even arguing that Harris shouldn’t give any interviews because it’s too risky.
Rep. James Clyburn (D-S.C.) explained that Harris should avoid one-on-one media interviews because “sometimes, you drill down into a question until there’s a word that’s uttered that can be used in a negative way.” I suppose, as president, she will need to insist on meeting foreign leaders only in CNN town hall events.
If you do not say anything, there are no facts to check. The election then becomes a vote over whether you are for or against “joy.”
What is clear from the ABC debate is that citizens are on their own in the election to find actual facts and substance in the super-sized Slurpee of the 2024 election.
It appears that the Harris-Walz campaign to embrace “joy” has taken hold among educators in L.A. The Los Angeles Unified School District (LAUSD) voted 4-3 to allow 10 schools to opt out of standardized tests and test preparation beginning in the 2025-26 school year. LAUSD President Jackie Goldberg declared the move was a blow to “corporate America” and would restore the “enjoyment of education.”
We have previously discussed how schools have been dropping the use of standardized tests to achieve diversity goals in admissions. That trend continued this month with Cal State dropping standardized testing“to level the playing field” for minority students. I have long been a critic of this movement given the overwhelming evidence that these tests allow an objective measure of academic merit and have great predictive value on the performance of students.
Many colleges and universities are returning to standardized testing after the much-acclaimed abandonment of the tests for a more “holistic approach” to selection. However, public educators have continued to lower proficiency requirements and cancel gifted programs to “even the playing field.” The result has been to further hide the dismal scores and educational standards of many public school districts.
Goldberg lashed out at the “testing industry” which tends to expose the continued failure of public education to give these students a fighting chance in society. Rather than look at their own failures over decades to significantly improve scores, Goldberg said that she “hoped” the resolution would “begin to change how we look at student assessment.” In other words, students would be assessed without looking at how they actually perform on tests with other students.
Tests, it appears, are just a buzz kill for teachers and students alike: “Because the whole goal of life became not the love of learning, not the enjoyment of education, not the exchange of ideas, but whether or not your school could move up on its test scores. For at least 20 years, I have found that repugnant.”
It shows, Ms. Goldberg, it shows.
The retiring Goldberg has always been more focused on increasing budgets than improving scores. Her website declares
“California is the world’s fifth richest economy. There are 157 billionaires here who pay almost nothing in taxes. There is no excuse for why New York spends $29k per pupil while we spend $16.5k. It’s time to tax the great wealth in this state and re-invest in our children!”
That appears to be one statistical score that Goldberg does find relevant as a measure of education. Others at the meeting noted that they have falling enrollments, and this will not help.
I previously wrote about how public educators and teacher unions are killing public education in America. Many of us have advocated for public education for decades. I sent my children to public schools, and I still hope we can turn this around without wholesale voucher systems.
Once parents have a choice, these teachers lose a virtual monopoly over many families, and these districts could lose billions in states like Florida. This is precisely why school systems are facing budget shortfalls as families vote with their feet. These families want a return to the educational mission that once defined our schools.
L.A. will pursue a program under which they appoint a “lead teacher” for additional professional development from Community School Coaches and the University of California Los Angeles Center for Community Schooling. They will focus on an effort to “integrate culturally relevant curriculum, community- and project-based learning, and civic engagement” into their programs. The “relevant” curriculum would not include actual standardized testing.
It promises more the same. Bringing “joy” back to schools will come without the accountability of standardized testing. For teachers, such tests are decidedly not joyful since they expose their own failures and set goals for improvement. Now they can just “assess” students as successful and send them along their way.
Public schools across the country will continue to fail inner city children and leave them in the same crushing patterns of poverty. In Baltimore, a survey found that forty percent of schools did not have a single student proficient in math. Rather than reverse that trend, the schools are just waiving the tests and graduating the students. What is so frustrating is reading about failing school systems lowering proficiency standards and claiming that it is better for minority students.
American education faces the perfect storm. Despite record expenditures on public schools, we are still effectively abandoning students, particularly minority students, in teaching the basic subjects needed to succeed in life. We will then graduate the students by removing testing barriers for graduation. Then some may go to colleges and universities that have eliminated standardized testing for admission.
At every stage in their education, they have been pushed through by educators without objective proof that they are minimally educated. That certainly guarantees high graduation rates or improved diversity admissions. However, these students are still left at a sub-proficient state as they enter an increasingly competitive job market and economy.Any failures will come down the road when they will be asked to write, read, or add by someone who is looking for actual work product. They will then be outside of the educational system and any failures will not be attributed to public educators.
As I have previously written, if we truly care for these students, we cannot rig the system to just kick them down the road toward failure. It is like declaring patients healthy by just looking at them and sending them on their way. We have the ability to measure proficiency, and we have the moral obligation to face our own failures in helping these kids achieve it.
Alissa Eleanor Azar, a well-known Antifa activist, was sentenced to jail recently in Oregon after being convicted of felony riot and disorderly conduct. What is notable about the case was the journalism defense put forward by Azar, who claims that she was not a participant but press. That assertion is belied by not just videotapes of Azar assaulting members of the far-right group The Proud Boys but her long record of violence.
The court rejected the journalism defense after reviewing videotapes showing Azar organizing with Antifa and then engaging in the attacks. Ironically, while arguing for press freedom, her counsel attempted to bar media from the courtroom, seeking an order to block the conservative outlet Post Millennial, which has dedicated much coverage to Antifa.
“Antifa originated with European anarchist and Marxist groups from the 1920s, particularly Antifaschistische Aktion, a Communist group from the Weimar Republic before World War II. Its name resulted from the shortening of the German word antifaschistisch. In the United States, the modern movement emerged through the Anti- Racist Action (ARA) groups, which were dominated by anarchists and Marxists. It has an association with the anarchist organization Love and Rage, which was founded by former Trotsky and Marxist followers as well as offshoots like Mexico’s Amor Y Rabia. The oldest U.S. group is likely the Rose City Antifa (RCA) in Portland, Oregon, which would become the center of violent riots during the Trump years. The anarchist roots of the group give it the same organizational profile as such groups in the early twentieth century with uncertain leadership and undefined structures.”
As I have previously written, it has long been the “Keyser Söze” of the anti-free speech movement, a loosely aligned group that employs measures to avoid easy detection or association. Yet, FBI Director Chris Wray has repeatedly pushed back on the denials of Antifa’s work or violence. In one hearing, Wray stated “And we have quite a number” — and “Antifa is a real thing. It’s not a fiction.”
Some Democrats have played a dangerous game in supporting or excusing the work of Antifa. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”
It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the “bible” of the Antifa movement: Rutgers Professor Mark Bray’s Antifa: The Anti-Fascist Handbook.
Bray emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’”
Bray admits that “most Americans in Antifa have been anarchists or antiauthoritarian communists… From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”
Antifa has often targeted journalists or critics for violent attacks. The conservative site Hot Air showed attacks by Antifa supporters after the hearing.
Judge Todd L. Van Rysselberghe for the 5th Judicial District Circuit Court of Oregon sentenced her to 14 days in a local jail, followed by 36 months of supervised probation and GPS monitoring. That short stint was still more than courts and prosecutors have been willing to impose in past cases involving Antifa violence.
Previously, Azar was charged with violence in the Portland riots. However, as with other district attorneys, Multnomah County District Attorney Mike Schmidt dropped those and other charges despite massive property damage and injuries associated with those riots.
The use of media credentials by Antifa activists has dangerously blurred the line of press and protesters for police. That puts real journalists at greater risk.
In the meantime, Antifa (the group that supposedly does not exist) has elected members to legislative offices in Europe as more radical parties make inroads both in the United States and around the world.
We have been discussing a slew of books and interviews by academics denouncing the Constitution or individual rights as a threat to democracy. The latest is Brown University Political Science Professor Corey Brettschneider who is warning about the “dangers of the Constitution.” It is all part of a counter-constitutional movement challenging the very documents that have protected freedoms for centuries. It is hardly a perfect record, but it has served the country and its citizens well. Brettschneider explained to the Brown Daily Herald that the constitution is not only a danger to us all, but “the traditional checks and balances don’t work, and that impeachment and the Supreme Court have failed to check rogue presidents.” He warned that “it could be that we’re at the moment where American democracy doesn’t survive.” The reason appears in large part Trump. Like many, Brettschneider brushes over the fact that the system has worked as designed, including after the Jan. 6th riot. Notably, I agree with aspects of the book in highlighting the courageous struggle of dissenters in our history and the criticism of figures like John Adams, who is also criticized in my new book, “The Indispensable Right: Free Speech in an Age of Rage.”
Moreover, he is correct that abusive presidents have avoided impeachment, and the Court has historically failed to protect individual rights. We both criticize those failures, particularly by the Court. Ultimately, however, the Court did embrace more robust views of individual rights and has repeatedly blocked the overreach of presidents.
Brettschneider describes what he calls “constitutional constituencies” in their struggle against such abuses.
“These constitutional constituencies, the citizens readers of the Constitution who played a critical role in defending and furthering our democracy, therefore disrupt a standard story told by constitutional law scholars and political scientists – experts who declare that checks on the president come mainly from Congress or the Supreme Court or locate the foundation of our democracy with the writers of the Constitution in 1787.”
He adds “If history is any guide, today’s crisis makes this a time ripe for constitutional recovery. In that sense, this book offers hope for current citizens seeking to restore democracy.”
While the book is about historical abuses by presidents and the struggle against them, the book’s pitch pushes all of the anxiety buttons: “Imagine an American president who imprisoned critics, promoted white supremacy, and sought to undermine the law to commit crimes without consequence.” (The book addresses five prior presidents and the pitch does not make direct reference to Trump).
I have no objection to those who speak out against Trump or his conduct. That is part of a worthy national debate in this election year. However, more professors and pundits are suggesting that it is not just Trump but our Constitution that is threatening our democracy. While others have called the Constitution “trash” in their books, Brettschneider is a bit more circumspect in his interview and reportedly calls the Constitution a “dangerous document.”
The remarks of Professor Brettschneider is part of a growing library of books and interviews attacking the Constitution. As discussed earlier, law professors have led this effort. For example, in a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”
Other professors have called for amending the First Amendment and have attacked free speech as a danger.
The United States Constitution is the oldest and most successful Constitution in history. It has survived crises that have destroyed other nations. Yet, we are a people who have not experienced true tyranny. We can lose our appreciation for how fortunate we are to have this system and the stability that it has afforded this country.
In challenging constitutional values like the system of checks and balances, these academics are seeking to strip away the very elements that have forced compromise and moderation throughout our history. It is the very genius of James Madison that allowed the most pluralistic nation on Earth to govern as one.
The post-constitutional world that some professors describe is no doubt attractive to many. It promises more immediate gains from raw political power. However, it would endanger all rights by reducing the guardrails that have served us so well for centuries.
The United States Court of Appeals for the Sixth Circuit handed down a major victory for free speech this week in favor of a professor challenging his treatment by the University of Louisville. In Josephson v. Ganzel, a unanimous panel ruled for Dr. Allan Josephson who was subject to adverse actions after he publicly expressed skepticism over some treatments for youth diagnosed with gender dysphoria. The decision is important because it deals with qualified immunity and reaffirms liability for the denial of free speech protections.
Writing for the panel (including Senior Judge Ronald Lee Gilman and Judge Allen Griffin), Judge Andre Mathis found that university officials could not claim immunity in the denial of free speech protections for faculty.
We previously discussed this case. Josephson was a professor of psychiatry at the medical school and had success at the school after serving as the Division Chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville for nearly 15 years. He has 35 years of experience in the field. His apparent good standing at the school changed dramatically when he participated in a discussion of the treatment of childhood gender dysphoria at an event in October 2017 sponsored by a conservative think tank, the Heritage Foundation. He expressed his reservations with some treatments and his public comments were reported back to his colleagues.
Dr. Josephson argued that children are not mature enough to make such major, permanent decisions and that 80-95 percent of children claiming gender dysphoria eventually accept their biological sex over time without such treatment. Those views are widely shared by others and have been cited as the basis for states adopting bans on conversion treatments for young children.
His commentary triggered a backlash at the school, which led to a decision not to renew his contract. When sued, the school invoked the Eleventh Amendment and claimed qualified immunity. The district court correctly rejected that claim, and the Sixth Circuit just affirmed that denial.
The university was seeking protection that would have insulated anti-free speech practices from liability, a dangerous prospect that could have dramatically accelerated the growing intolerance on campuses. The University of Louisville was arguing that they could punish faculty for public statements without fear of liability as state officers.
Judge Mathis and his colleagues made fast work of this insidious and dangerous claim:
Defendants argue that they are entitled to qualified immunity for two main reasons. First, they argue it was not clearly established that each Defendant’s conduct, in isolation, was an adverse action sufficient to show retaliation against a professor because of his protected speech. Second, they argue it was not clearly established that the First Amendment protected statements like those Josephson made in October 2017.
Resolving Defendants’ first argument is not complicated. Defendants argue that Josephson’s rights were not clearly established because no court had specifically addressed whether isolated actions against a professor because of his speech were adverse actions. In other words, Defendants believe they can act as they choose until there is a case on all fours. We disagree. As we have explained, “we do not require an earlier decision that is ‘directly on point.’” McElhaney v. Williams, 81 F.4th 550, 556–57 (6th Cir. 2023) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). At the same time, “‘existing precedent’ must place the contours of the right ‘beyond debate.’” Id. (quoting Mullenix, 577 U.S. at 12).
During the relevant period, it was beyond debate that “the First Amendment bar[red] retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592 (1998). By the fall of 2017, both the Supreme Court and this court had held that, absent a disruption of government operations, a public university may not retaliate against a professor for speaking on issues of social or political concern. Pickering, 391 U.S. at 574; Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 682 (6th Cir. 2001). And we had established that a retaliatory “adverse action” is one that “would deter a person of ordinary firmness from continuing to engage in that conduct.” Thaddeus-X, 175 F.3d at 394. We had further established that campaigns of harassment, when considered as a whole, may amount to adverse actions. See Fritz, 592 F.3d at 724; Thaddeus-X, 175 F.3d at 398; Bloch, 156 F.3d at 678. It was also established that legitimate threats “to the nature and existence of one’s ongoing employment is of a similar character to the other recognized forms of adverse action—termination, refusal to hire, etc.—even if perpetrated by a third party who is not the employer.” Fritz, 592 F.3d at 728. We have, moreover, “repeatedly held that ‘[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.’” Wenk v. O’Reilly, 783 F.3d 585, 595 (6th Cir. 2015) (alteration in original) (emphasis omitted) (quoting Bloch, 156 F.3d at 681–82). Thus, a reasonable university official during the relevant period would have understood that he could not lawfully terminate or threaten the economic livelihood of a professor because of his protected speech.
Defendants’ second argument does not fare much better. That is because the protected nature of Josephson’s speech was also clearly established. “To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). The principle “must be settled law.” Id. (internal quotation marks omitted). Settled law “means it is dictated by controlling authority or a robust consensus of cases of persuasive authority.” Id. (internal quotation marks omitted).
In the First Amendment retaliation context, “we ask whether any reasonable official would have understood that [Josephson’s] speech was protected, and thus that the official could not retaliate against him.” McElhaney, 81 F.4th at 557. The answer: It is, and has been, clearly established that public employees have a right to speak “on a matter of public concern regarding issues outside of one’s day-to-day job responsibilities, absent a showing that Pickering balancing favors the government’s particular interest in promoting efficiency or public safety.” Ashford, 89 F.4th at 975 (first citing Buddenberg v. Weisdack, 939 F.3d 732, 739–40 (6th Cir. 2019); then citing Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011)).
It can no doubt be difficult to determine if speech is public or private. See DeCrane, 12 F.4th at 599 (“[W]e have recognized that it can be ‘challenging’ to distinguish public from private speech.” (citation omitted)). Even so, by 2012, “[w]e had held that employees speak as private citizens (not public employees) at least when they speak on their own initiative to those outside their chains of command and when their speech was not part of their official or de facto duties.” Id. at 599–600 (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 542–43 (6th Cir. 2012)). “Would this ‘firmly established’ rule have ‘immediately’ alerted a reasonable person No. 23-5293 Josephson v. Ganzel, et al. Page 22 that” Josephson spoke in his private capacity? See id. at 600 (quoting Wesby, 583 U.S. at 64). We think so.
Defendants also argue that Josephson’s Heritage Foundation panel remarks were a part of his official duties. Even if that were the case, it was clearly established that such speech is protected. See Meriwether, 992 F.3d at 505; Hardy, 260 F.3d at 680; Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001) (“[A] professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.”).
After a recent blow to academic freedom and free speech by the United States Court of Appeals for the Fourth Circuit, this is a heartening opinion. It is particularly important because, as I have previously written in columns and my new book, public universities will be key to any effort to restore free speech values to higher education.
Higher education has already plunged in trust among citizens under the current administrators and faculty at our colleges and universities. They are destroying the very institutions that sustain them. Public universities can be a strong line of defense for free speech, offering students not just free speech environments but the direct protection of the First Amendment. Not surprisingly, the annual survey of free speech on campuses tends to have public universities at the top of the list of the most protective institutions with a few private standouts.
As shown by the University of Louisville’s medical faculty, administrators and faculty are not necessarily any more inclined to protect diversity of thought at public universities. However, the applicability of the First Amendment subjects them to greater accountability in the courts. In this case, the University of Louisville was seeking to reduce that accountability.
I have written about how taxpayers and legislators can exercise their own power to demand more diversified and tolerant environments at these schools. In the meantime, faculty and students can turn to state schools for greater protections for speech and more diverse environments. This case will help in that effort.
National Public Radio has had a rough go in the last few years with declining audiences, financial shortfalls, and the recent exposure of its political bias by longtime editor Uri Berliner. However, if you tuned into the comments of NPR CEO Katherine Maher this week at the Texas Tribune Festival, you would think that the only challenging decision for NPR is picking the design of the next pledge drive tote bag. Despite comments that were repeatedly evasive and misleading, a room full of journalists seemed to just nod like William Safire’s “nattering nabobs.”
Mayer led with what many former employees like Berliner may have seen as a literal punchline: “I stand here to defend the integrity of the newsroom and to defend the integrity of the reporting and to say that every single day our folks get up, and they want to stand there and make sure that they are serving the American public in the best possible way from a nonpartisan perspective.”
NPR, however, has lost much of the public. Ironically, it is now more liberal and whiter than ever with relatively few minority, male, or conservative listeners. NPR’s audience has been declining for years. Indeed, that trend has been most pronounced since 2017 — the period when Berliner said the company began to openly pursue a political narrative and agenda to counter Donald Trump. The company has reported falling advertising revenue and, like many outlets, has made deep staff cuts to deal with budget shortfalls.
As she has in the past, Maher portrayed Berliner as pushing a false political agenda in claiming any bias at NPR. She denounced his criticism as an “affront to the individual journalists who work incredibly hard to report the news and report the news well and report the news with integrity … in a nonpartisan way.”
The portrayal of NPR as unbiased and balanced is laughingly absurd. Indeed, many of us objected to Maher’s selection after years of declining audiences and increasing criticism. Maher had a long record of far-left public statements against Republicans, Trump, and others.
As I have stated in the past, I am not suggesting that NPR does not have a right to slanted coverage. Many outlets today have such bias. However, they do not have a right to receive public subsidies. In a competitive media market, the government has elected to subsidize a selective media outlet. Moreover, this is not the media organization that many citizens would choose. While tacking aggressively to the left and openly supporting narratives (including some false stories) from Democratic sources, NPR and its allies still expect citizens to subsidize its work. That includes roughly half of the country with viewpoints now effectively banished from its airwaves.
While local PBS stations are supported “by listeners like you,” NPR itself continues to maintain that “federal funding is essential” to its work. If NPR is truly relying on federal funds for only 1 percent of its budget, why not make a clean break from the public dole? NPR would then have to compete with every other radio and media outlet on equal terms. And it would likely do well in such a competition, given its loyal base and excellent programming.
Maher and NPR want to continue to offer slanted coverage but require all Americans (including most who do not listen to NPR due to the bias) to pay for it.
Maher’s talk was a litany of faux expressions of concern with no indication of a willingness to change a thing at NPR. Maher expressed a heart-felt need to face “perceived criticism.” Putting aside that there is nothing “perceived” in the criticism, it is clear that she rejects the very premise of the obvious bias of the outlet.
When finally asked by Fox New Digital about voter registration records in 2021 showing an astonishing disparity between Democrats and Republicans in the NPR newsroom, Maher dismissed the data. Berliner found 87 registered Democrats and zero Republicans. However, Maher said that there were many employees not part of those stats. That is like dismissing a poll because not every American was contacted. There is no reason to expect that those self-reporting are hugely skewed toward Democrats without a single Republican participating.
She added that they are not allowed to hire employees based on political affiliation. It was again transparently evasive. No one is suggesting a political litmus test based on party registrations. The problem is the hiring of people who are uniformly left and Democratic in their outlooks and values.
Maher said that she believes that “it’s incredibly important for us to have people of diverse viewpoints in the newsroom, and the totality of the lived experience.” However, they clearly are not doing that in their hiring process. It is not an accident when you lack a single Republican in hiring.
We face the same rationalization in academia.
A survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as “liberal” or “very liberal.” Only 2.5% identified as “conservative,” and only 0.4% as “very conservative.”
Likewise, a study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. Another study found that 33 out of 65 departments lacked a single conservative faculty member.
When pressed, administrators and academics express the same befuddlement why their faculties are exclusively liberal. It is just a mystery. It cannot be due to their own bias in hiring people with clearly liberal or far left views.
Maher was clearly singing to the choir in this event. She noted that some of her viewers want NPR to be harder on Trump. That is hardly surprising. While taking federal funds from the entire country, NPR currently has a shrinking audience of largely liberal, older, white, female Democrats. “Balance” is viewed by many as considering whether Trump is an existential threat to democracy or to humanity.
The falling audience and revenue shows that Maher and NPR are not appealing to a larger audience. Once again, they should not have to do so. If they want a smaller audience while maintaining the current one-sided coverage, that is entirely between them and their donors. What they do not have a right to is a public subsidy for that slanted coverage.
It is time for NPR to operate entirely in the free market like all of its competitors from CBS Radio to Fox Radio. If it is truly offering a broad and balanced news source, Maher will have little difficulty thriving without public funding.
Below is my column in the Hill on the effort of Democratic officials to keep Robert Kennedy on the ballot in swing states after seeking to block actual candidates from the same ballots. It is all in the name of democracy.
Here is the column:
In 1968, in the midst of Democratic convention riots, Chicago Mayor Richard Daley famously declared, “The policeman isn’t there to create disorder; the policeman is there to preserve disorder.”
Democratic state election officials appear to have adopted a similar approach to the upcoming election. In states such as North Carolina and Michigan, Democrats are fighting to keep the name of Robert Kennedy, Jr. on the ballot even though he withdrew from the race and endorsed former president Donald Trump. These are key states where the misplacement of even 1 percent of votes could turn the outcome of not just the state but the entire election.
In Michigan, Democratic Secretary of State Jocelyn Benson recently fought to keep third-party candidate Cornel West off the ballot. Unlike Kennedy, who is viewed as likely to drain votes from Trump, West is viewed as pulling votes from Vice President Kamala Harris, particularly among those opposed to her policies toward Israel.
A court ruled against Benson and said that she was adopting an artificially narrow interpretation to keep Kennedy on the ballot.
In North Carolina, where Trump and Harris are in a statistical tie, Democrats also refused to remove Kennedy’s name. An appellate court this week ordered them to do so to avoid the obvious confusion for voters.
Recently, the same Democratic officials sought to block West from the ballot due to his campaign causing “partisan mischief.”
These efforts are being pursued in other states such as Wisconsin (another key state), where Democrats on the election board blocked a Republican effort to remove Kennedy’s name.
In Michigan and North Carolina, officials have the distinction of fighting to keep a popular candidate from the ballot while fighting to retain a non-existent candidate.
It is all in the name of protecting democracy from itself.
Previously, Democrats in Florida and North Carolina fought to block other Democrats from appearing on primary ballots. Candidates like Rep. Dean Phillips (D-Minn.), author Marianne Williamson and commentator Cenk Uygur faced concerted campaigns by election officials and advocates to prevent voters from having a choice in the primary.
After preventing a meaningful primary and securing the nomination for President Biden, Democrats later handed the nomination to Harris without a single vote from a single primary voter.
Democratic activists are now calling it an election by “acclamation,” like a political version of the immaculate conception in which a candidate is simply conceived by the party elite. It is enough to make the Chinese Central Committee blush.
Harris was then walled off from the media to avoid any unscripted interactions, including by putting earbuds in her ears in what many called a clearly fake call to avoid press questions.
At the same time, Democratic supporters are now arguing that it is not necessary for Harris to offer detailed plans or agree to interviews in a campaign that is selling “joy” and “good vibes” like political valium. Others appear to believe that saving democracy means holding Harris to a different, more deferential standard. New York Times editorial board member Mara Gay appeared on MSNBC’s “Morning Joe” to defend treating Harris differently: “I think the challenge, not just for journalists, but really for the country, is that not only is Donald Trump a threat, but, you know, it lowers the bar. So, I don’t think it’s unacceptable,”she said.
Somewhere in that double negative, journalism perished. In my new book, I discuss how journalists are now sometimes taught to dispense with both neutrality and objectivity in favor of framing the news for viewers and readers. You see, it is all about saving democracy. Gay explained: “The context is difficult because of the extremism of the Republican Party, because of how extreme Donald Trump is, it’s hard to hold both candidates accountable equally, because one is committed to democracy and is functioning as a normal candidate from a normal American party, and the other is not.”
This was echoed by “Morning Joe” host Joe Scarborough, who said that life as we know it would end unless Harris is elected, telling viewers that the “autocrat” Trump would throw opponents in jail and take media outlets off the air: “So, yeah, the threats to democracy are real,” he said. “But [so are] the threats to the free market, the threats to free enterprise, to our economy.”
Other guests amplified that dire message further and criticized people for covering how Harris is changing her positions and refusing to offer details on policies. It appears that this election is simply too important for substantive debate. After all, Harris has said that 2024 “genuinely could be”the last democratic election in America’s history. The last thing we need is a substantive election at this precarious time.
The omitted details include Harris’s support for policies that many of us view as a direct threat to our constitutional system, including censorship and court packing.
Both candidates have much to address that they would prefer to ignore. The media is correct to press Trump on many of these issues. Yet, the success of any democratic system is dependent on three key elements: participation, information and choice. Getting the vote out takes on a menacing meaning if voters are being protected from the distractions of facts. Winning at any cost is no virtue in a democracy, even when claiming to be a defender of democracy.
In the 1999 cult classic The Blair Witch Project, one character tells his friends “I could help you, but I’d rather stand here and record.” For free speech advocates, we often feel that other citizens have become passive observers as an anti-free speech movement grows around us, threatening our “indispensable right.”
One of the most infamous figures in this movement has been former British Prime Minister Tony Blair, who has long been the smiling face of censorship. As the head of the Labour Party, Blair pushed through some of the early crackdowns on free speech in the United Kingdom. He is now calling for global censorship to expand these efforts.
In an interview on LBC Radio, Blair declared:
“The world is going to have to come together and agree on some rules around social media platforms. It’s not just how people can provoke hostility and hatred, but I think… the impact on young people particularly when they’ve got access to mobile phones very young, and they are reading a whole lot of stuff and receiving a whole lot of stuff that I think is really messing with their minds in a big way.”
We recently discussed how the UK is already using recent rioting to crackdown further on those with opposing or “toxic” views. For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests.
While most of us find Brock’s views repellent and hateful, they were confined to his head and his room. Yet, Judge Peter Lodder QC dismissed free speech or free thought concerns with a truly Orwellian statement: “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.” Lodder lambasted Brock for holding Nazi and other hateful values:
“[i]t is clear that you are a right-wing extremist, your enthusiasm for this repulsive and toxic ideology is demonstrated by the graphic and racist iconography which you have studied and appeared to share with others…”
Even though Lodder agreed that the defendant was older, had limited mobility, and “there was no evidence of disseminating to others,” he still sent him to prison for holding extremist views. After the sentencing Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing Southeast (CTPSE), warned others that he was going to prison because he “showed a clear right-wing ideology with the evidence seized from his possessions during the investigation….We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.”
Blair’s views have been echoed by Speaker of the House Sir Lindsay Hoyle who declared:
“Misinformation is dangerous. Social media is good but it’s also bad when people are using it in a way that could cause a riot, threat, intimidation, suggesting that we should attack somebody, it’s not acceptable. What we’ve got to do is factually correct what’s up there, if not I think the government has to think long and hard about what they are going to do about social media and what are they going to put through parliament as a bill.’
“I believe it should be across, it doesn’t matter what country you are in, the fact is that misinformation is dangerous and no misinformation, or threats, or intimidation should be allowed to be carried out on social media platforms.”
As with the effort in Brazil to block X entirely for refusing to censor political opponents of the government, Blair’s call for global censorship is where the movement is going next.
Notably, after Musk purchased Twitter, Hillary Clinton called upon European officials to force him to censor American citizens under the infamous Digital Services Act (DSA). Recently, Democratic leaders like Minnesota Attorney General Keith Ellison praised Brazil for its action to prevent citizens from having access to unfettered news sources.
Interviews like the one with Tony Blair are not just jump scares meant to intimidate or scare others. They reflect a comprehensive campaign from our political elite to enforce censorship on a national and transnational scale. If you think that this latest Blair Witch Project is just another scary production, you have not been paying attention.
Silicon Valley investor Roger McNamee this weekend went on MSNBC’s “Last Word” and called for the arrest of Elon Musk for “undermining” the federal government by sharing his opinions on X.
McNamee is the latest denizen of the global elite to call for criminalizing speech to silence those with opposing views. McNamee is the founding partner of Elevation Partners and has a colorful history as a band member, a volunteer for Eugene McCarthy and a protester against Vietnam.
As discussed in my book “The Indispensable Right: Free Speech in an Age of Rage”, he is like many liberal baby boomers now joining the anti-free speech movement. They have decided that free speech, once the defining right for the left, is now an existential threat.
McNamee’s rationale for criminalizing speech is chillingly shallow and irrational. He declared that somehow Musk’s political views made him a danger as the head of companies of major importance to the United States. It does not bother him when CEOs adopt far left views, just Musk opposing some of those views:
“You have somebody who runs a really strategic defense and aerospace projects for the federal government who’s actively undermining the government that’s paying him. And somewhere in that is a legal case that needs to be prosecuted.”
Perish the thought that a CEO might undermine the government. McNamee is using the government contracts with SpaceX as a reason to censor Musk’s political and social views.
“The critical element in thinking about Elon Musk is that, like any American, he has a right to his own opinion, and he has a right to express his opinion. However, that right is not unlimited. He is under some special limitations that would not apply to normal people because his company, specifically Starlink and SpaceX are government contractors and, as such, he has obligations to the government that would, for any normal person, and should for him, require him to moderate his speech in the interest of national security.”
So, according to McNamee, if your company makes something that the government wants (including rescuing the currently stranded astronauts in space), he must give up his right to express political views, including against censorship.
McNamee embraces the power of the government to dictate viewpoints or at least silence certain views as a matter of national security. It is no accident that the overriding objective is to “get Musk.” Musk has proven the single greatest barrier to the global anti-free speech movement.
As with the effort in Brazil to block X entirely for refusing to censor political opponents of the government, McNamee’s call for state-driven censorship is where the movement is going next.
Notably, after Musk purchased Twitter, Hillary Clinton called upon European officials to force him to censor American citizens under the infamous Digital Services Act (DSA). Recently, Democratic leaders like Minnesota Attorney General Keith Ellison praised Brazil for its action to prevent citizens from having access to unfettered news sources.
What is most striking about these efforts is that they occurred after the failure of Plan A: to get Americans to embrace censorship. Facebook even ran a creepy campaign to try to get young people to accept censorship, or “content moderation.” The commercials show people like “Joshan” who says that he “grew up with the internet.” Joshan mocks how much computers have changed and then objects how privacy and censorship have not evolved as much as our technology. As Joshan calls for “the blending of the real world and the internet world,” content moderation is presented as part of this not-so-brave new world. Joshan and his equally eager colleagues Chava and Adam were presented by Facebook as the shiny happy faces of young people longing to be content modified. They were all born in 1996 — the sweet spot for censors who saw young people as allies to reduce free speech.
It did not work. Despite some erosion of free speech among young people, it takes a great deal to get a free people to give up their freedoms. Plan B is now to accomplish this objective of speech controls through national and global regulation. Figures like McNamee and Bill Gates are ready to support this brave new world of speech regulation by global censors.
While claiming unprecedented threats from “disinformation,” these are the same voices and rationales discussed in my book that have been used for centuries to limit the speech of others. They are selling the same defective product with the promise that less freedom will lead to a better life.
For global elites like McNamee, free speech is not just dispensable but distracting. Only fools would listen to these voices in trading away our indispensable right.
Below is my column in the New York Post on the sudden guilty plea from Hunter Biden in his federal tax case. It was not the plea but the timing of the plea that was the surprise. What is missing is any cognizable legal strategy in waiting until the first day of the trial to make a “naked plea” when it offered the least possible benefit to him. It was like waiting for the water to reach the deck of the Titanic before asking about swimming lessons. He was a tad late and then unsuccessfully sought to plead guilty without admitting guilt.
Here is the column:
Hunter Biden just showed the perils of playing the game of chicken with yourself. For months, many of us have marveled at the sight of Hunter careening toward a cliff while declaring publicly that he was prepared to go all the way. The Justice Department was never going over the cliff because they had nothing to gain or lose in open-and-shut cases in Delaware and California. There was never a serious question of convicting Hunter of these crimes, just a will of the Justice Department to secure them.
Special Counsel David Weiss inexplicably allowed serious felonies to expire, refused to bring obvious crimes as an unregistered foreign agent, and sought to cut an embarrassing sweetheart deal with Hunter to avoid any jail time on a couple of minor crimes. The deal then collapsed in open court when a judge balked at a provision that would give Hunter sweeping immunity for any crime. When she asked the federal prosecutor if he had ever seen such a plea bargain offered a defendant other than the President’s son, he admitted that he had not.
That is when the chest pounding began. Unwilling to accept anything but the sweetheart deal, Hunter’s defense counsel told the prosecutors in court to “just rip it up.” They did and Weiss was forced to actually prosecute Hunter.
According to the Justice Department, Weiss continued to try to cut a plea bargain with Hunter but was rebuffed by the defense. They then went to Delaware, the home of the Bidens, and tried to convince a sympathetic jury that Hunter was a drug addict who was not responsible for his action as well as other unsupported claims. It failed in spectacular fashion with a conviction on all counts.
Hunter then floored it for the California cliff on the tax charges as the Justice Department and most of us watched confused about how he was trying to intimidate. He hit the brakes as the trial was beginning. Hunter has succeeded in putting himself in the worst possible position for a plea. He waited until he had little to trade and reportedly did not even inform the prosecutors of his decision.
But it gets worse. If he had agreed to a less generous plea deal last year, he could have secured a recommended sentence on both the gun and tax charges. Instead, he will go into this sentencing with a past criminal record, an aggravating factor that could reduce the benefit of the belated plea. In the end, Hunter had nothing to offer, nothing to bargain. He plead guilty to all nine counts.
This decision may still be based more on political than legal calculations. Hunter was almost certain to be convicted. But it would have taken time as his father’s administration (and pardon authority) wanes. If Hunter still hopes for a presidential commutation or pardon, the chances of such executive action is dramatically improved after a sentencing. The White House rarely considers pardons before a trial and sentencing. Indeed, they often wait for appeals to run their course.
Moreover, a demand for jail time seems likely from the Justice Department given this history and it is equally likely to be granted. If that sentence is lengthy, it will add pressure on President Biden to take action with a commutation or pardon. If President Biden does violate his promise to not pardon Hunter, it would not be a surprise for many. In 2022, I wrote that the President could resign or withdraw as a candidate and pardon Hunter.
I referred to this as “break-the-glass option”: “He would end his political career with an act as a father, which some would condemn but most would understand.”
The plea also avoided the massive influence peddling operation of the Biden family from being aired in open court.
The refusal of the Justice Department to charge Hunter as an unregistered foreign agent stands in flagrant contradiction to past and current cases under the Foreign Agents Registration Act (FARA).
None of this explains the logic of Hunter’s criminal defense strategy. A legal one-man game of chicken is certainly engrossing to watch but leaves most lawyers wincing rather than flinching as the spectacle unfolds.
For the second year in a row, Harvard University is ranked dead last among universities and colleges on the annual survey of free speech on campuses by the Foundation for Individual Rights and Expression (FIRE). Harvard shares a score of 0.00 with Columbia University. They are followed by New York University, University of Pennsylvania and Barnard College.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss free speech on campuses and note that public universities could prove the last line of defense for this right. It is not that faculty members are necessarily any more protective of free speech or intellectual diversity at these schools. However, they are directly subject to the First Amendment as state schools and thus can be taken to court more readily for denials of the right.
Conversely, at schools like Harvard, Columbia, Penn, and NYU, the faculty appears unconcerned about their dismal records on free speech. There is still a growing anti-free speech movement on our campuses. It is notable that these schools also have largely purged conservative and Republican faculty from their ranks. A past survey found that over 75 percent of faculty identify as liberal or very liberal. Another survey found that many departments do not have a single Republican.
I was disappointed that my alma mater University of Chicago has fallen from number 1 to 44, though it still gets a shout out from FIRE as being a consistently strong free speech environment. The concerning fall has occurred under with the presidency of Armand Paul Alivisatos. He replaced one of the greatest advocates of free speech in academia, the late Robert Zimmer.
In the letter, the university declared that “our commitment to academic freedom means that we do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.”
It was a moment of clarity that is missing in today’s environment of speech codes, microaggressions, and cancel campaigns. When Zimmer stepped down in 2021, there was a virtual panic in the free speech community. He was our champion and placed one of the premier academic institutions in the world on the side of free speech.
Notably, Barnard College (unlike the other schools at the bottom) has joined other schools in adopting the Chicago Principles. It released a statement committing itself to a new course. We will have to wait to see if faculty will honor such a commitment.
George Washington University, where I teach, is 161st out of 251 schools with a below average ranking. What was surprising this year were the schools receiving a “warning” about anti-free speech policies. They include Pepperdine University, Hillsdale College, and Brigham Young University. FIRE found that all “have policies that clearly and consistently state” that they prioritize “other values over a commitment to freedom of speech.”The President of Hillsdale responded in this column.
If there will be substantial improvements in the anti-free speech environment in higher education in private colleges, they will only come from donors refusing to support these schools until they change their policies and culture. Administrators and faculty feel little pressure to reverse these trends. However, they will respond if their intolerance begins to threaten their own budgets and departments.
Higher education has already plunged in trust among citizens under the current administrators and faculty at our colleges and universities. They are destroying the very institutions that sustain them. In the meantime, public universities can be a strong line of defense for free speech, offering students not just free speech environments but the direct protection of the First Amendment. What is missing is greater diversity of viewpoints on faculties. I have written about how taxpayers and legislators can exercise their own power to demand more diversified and tolerant environments at these schools.
While some professors have argued that free speech and intellectual diversity are not essential to higher education, most of the public disagrees and has a right to expect a diverse and tolerant environment at state-supported schools.
In my book and past congressional testimony, I have also encouraged Congress to adopt ten basic prerequisites for federal funding for colleges and universities on free speech. If these schools want to continue to deny free speech to students and faculty, they should do so with their own funds and contributions from donors who share their anti-free speech agendas. Taxpayers should not be supporting schools which deny a right considered “indispensable” to our constitution and culture.
I previously wrote how a Harris-Walz Administration would be a nightmare for free speech. Both candidates have shown pronounced anti-free speech values. Now, X owner Elon Musk and former independent presidential candidate Robert F. Kennedy Jr. have posted a Harris interview to show the depths of the hostility of Harris to unfettered free speech. I have long argued that Trump and the third-party candidates should make free speech a central issue in this campaign. That has not happened. Kennedy was the only candidate who was substantially and regularly talking about free speech in this election. Yet, Musk and Kennedy are still trying to raise the chilling potential of a Harris-Walz Administration.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how the Biden-Harris Administration has proven to be the most anti-free speech administration since John Adams. That includes a massive censorship system described by one federal judge as perfectly “Orwellian.”
In the CNN interview, Harris displays many of the anti-free speech inclinations discussed earlier. She strongly suggests that X should be shut down if it does not yield to demands for speech regulation.
What is most chilling is how censorship and closure are Harris’s default positions when faced with unfettered speech. She declares to CNN that such unregulated free speech “has to stop” and that there is a danger to the country when people are allowed to “directly speak[] to millions and millions of people without any level of oversight and regulation.”
Harris discussed her view that then-President Trump’s Twitter account should be shut down because the public had to be protected from harmful viewpoints.
“And when you’re talking about Donald Trump, he has 65 million Twitter followers, he has proven himself to be willing to obstruct justice – just ask Bob Mueller. You can look at the manifesto from the shooter in El Paso to know that what Donald Trump says on Twitter impacts peoples’ perceptions about what they should and should not do.”
Harris demanded that Trump’s account “should be taken down” and that there be uniformity in the censorship of American citizens:
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power… They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
In other words, free speech should be set to the lowest common denominator of speech regulation to protect citizens from dangerous viewpoints. Harris’s views have been echoed by many Democratic leaders, including Hillary Clinton who (after Musk purchased Twitter) called upon European censors to force him to censor American citizens under the infamous Digital Services Act (DSA).
Other Democratic leaders have praised Brazil for banning X after Musk balked at censoring conservatives at the demand of the socialist government. Brazil is where this anti-free speech movement is clearly heading and could prove a critical testing ground for national bans on sites which refuse to engage in comprehensive censorship. As Harris clearly states in the CNN interview, there cannot be “one rule for Facebook and you have a different rule for Twitter.” Rather, everyone must censor or face imminent government shutdowns.
The “joy” being sold by Harris includes the promise of the removal of viewpoints that many on the left feel are intolerable or triggering on social media. Where Biden was viewed as an opportunist in embracing censorship, Harris is a true believer. Like Walz, she has long espoused a shockingly narrow view of free speech that is reflective of the wider anti-free speech movement in higher education.
Harris often speaks of free speech as if it is a privilege bestowed by the government like a license and that you can be taken off the road if you are viewed as a reckless driver.
Trump and the third-party candidates are clearly not forcing Harris to address her record on free speech. Yet, polls show that the majority of Americans still oppose censorship and favor free speech.
In my book, I propose various steps to restore free speech in America, including a law that would bar federal funds for censorship, including grants and other funding that target individuals and sites over the content of their views. The government can still speak in its own voice, and it can still prosecute those who commit crimes on the Internet or engage in criminal conspiracies. Harris should be asked if she would oppose such legislation.
For free speech advocates, the 2024 election is looking strikingly similar to the election of 1800. One of the greatest villains in our history discussed in my book was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
It was the only presidential election in our history where free speech was a central issue for voters. It should be again. While democracy is really not on the ballot this election, free speech is.
We have previously discussed (here and here and here and here) the push for reparations in California that has been touted by California Gov. Gavin Newsom and Democrats for years. After the Democrats campaigned on the issue in past elections, I wrote a column about how this bill had come due after years of delay for study and recommendations. The legislature, however, just stamped the bill “return to sender” and shelved the two reparations bills with the reported support of Newsom. The reaction is not surprising that there has been a bait-and-switch by Democrats on the issue.
Last week, the California legislature did approve proposals allowing for the return of land or compensation to families whose property was unjustly seized by the government and issuing a formal apology for laws and practices that have harmed Black people. However, the two bills to establish a fund for reparation payments – Senate Bills 1403 and 1331 – were tabled. State Sen. Steven Bradford blamed Democratic California Gov. Gavin Newsom for the result, stating that the governor made clear that he would veto them.
Newsom signed a $297.9 billion budget in June that included up to $12 million for reparations legislation. However, that is a drop in the bucket given the billions demanded and it is not clear how the money will be spent. Adding to the anger is the fact that the legislature approved a bill to allow undocumented persons to receive no-interest loans of up to $150,000 to cover down payments on new homes.
It is now unclear what will happen next, though sponsors are saying that they will continue to push for legislation green lighting reparation payments. Some congressional Democrats have pushed for similar federal reparations and passed a bill out of the House Judiciary Committee in 2021 that failed to receive a floor vote. BET founder Robert Johnson has called for $14 trillion in federal reparations.
As discussed earlier, there are a host of legal and practical questions over the reparation payments that will have to be resolved. Even with passage, the bills would likely face constitutional challenges.
Brazil has not just banned X (formerly Twitter) from the entire country, but citizens will now be fined $9000 a day (more than the average salary in the country) for using VPNs to access the platform. X is the main source of news for Brazilians, who will now be left with government-approved sources or face financial ruin in seeking unfettered information.
The Guardian is reporting that the confiscatory fines are part of a comprehensive crackdown on efforts to get news through X, including ordering all Apple stores to remove X from new phones. The move puts Brazil with China in the effort to create a wall of censorship between citizens and unregulated information. For the anti-free speech movement, Brazil is a key testing ground for where the movement is heading next. European censors are arresting CEOs like Pavel Durov while threatening Elon Musk.
However, it is Brazil that foreshadows the brave new world of censorship where entire nations will block access to sites committed to free speech values or unfettered news. If successful, the Brazilian model is likely to be replicated by other countries.
The reason is that censorship is not working. As discussed in my book “The Indispensable Right: Free Speech in an Age of Rage,” we have never seen the current alliance of government, corporate, academic, and media interest against free speech. Yet, citizens are not buying it. Despite unrelenting attacks and demonizing media coverage, citizens are still using X and resisting censorship. That was certainly the case in Brazil where citizens preferred X to regulated news sources. The solution is now to threaten citizens with utter ruin if they seek unfettered news.
The question is whether Brazil’s leftist government can get away with this. The conflict began with demands to censor supporters of the conservative former president Jair Bolsonaro. When X refused the sweeping demands for censorship, including the demand to name a legal representative who could be arrested for refusing to censor users, the courts moved toward this national ban.
The man behind the effort is Justice Alexandre de Moraes, who has aggressively used censorship to combat anything that he or the government deems “fake news” or disinformation. With Socialist President Luiz Inácio Lula da Silva, they are the dream team of the anti-free speech movement.
Justice Alexandre de Moraes
Minnesota Attorney General Keith Ellison responded to the ban with a posting declaring “Obrigado Brasil!” or “Thanks, Brazil!” Ironically, he did so on X.
Ellison previously praised the virulently anti-free speech group Antifa and promised that it would “strike fear in the heart” of Donald Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the “bible” of the Antifa movement: Rutgers Professor Mark Bray’s Antifa: The Anti-Fascist Handbook.
Bray emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’” Bray admits that “most Americans in Antifa have been anarchists or antiauthoritarian communists… From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”
The question is whether Brazil will become a nightmare for free speech around the world as other nations seek to force citizens to read and hear news from approved, state-monitored sites.
In my new book and prior columns, I have described a “radical chic” in academia, faculty who thrill audiences with extremist rhetoric and calls for radical reforms, even revolution. The latest example comes from Arizona State University where professors laid out their dystopian vision of America, a vision that apparently can be avoided by “dismantl[ing] capitalism” and “elect[ing] a female president.”
At the outset, it is important to note two things. First, the program covered by the conservative site College Fix was a small event. Second, these faculty members have every right to espouse these views, and it is good for students to have a wide variety of viewpoints on campus. My objection in the past has not been the presence of far-left faculty on campuses but the purging of conservative, moderate, and libertarian faculty.
It is also important to address what are becoming common and extreme arguments on our campuses, including a growing Anti capitalist movement.
The event titled “Jenny Irish’s HATCH: A Speculative Future for Reproductive Rights” was held both in person and via Zoom. Jenny Irish, an ASU English professor, was joined by Angela Lober, director of the Academy of Lactation Programs at ASU’s Edson College of Nursing and Health Innovation. Lober, who runs major programs at the school, offered some of the most extreme viewpoints, including the assertion that “the United States hates women and everything the female body does.”
It was a remarkable claim for a nation that has been a leader in the world in women’s rights for over a century and has long had major female leaders from the Vice President to the Speaker of the House of Representatives to various cabinet members.
Not to be outdone, Irish expressed her fear that the United States could see “forced breeding camps” and “cannibalism.” She told the students and faculty that “so much of our reality points toward those futures.” She was less clear on what specifically is pointing to that future other than the Supreme Court’s decision to leave abortion to the states.
Lober was, however, clear about the solution in calling for the audience to help “dismantle capitalism” and “elect a female president.”
The event was co-hosted by ASU Lincoln Center for Applied Ethics, which hosts events that aim to design “a future keyed to human flourishing.” Putting the hyperbolic rhetoric to the side, the anti-capitalist calls have become ubiquitous on campuses. Socialism has become a rallying cry with polls showing that young people have a more positive view of socialism than capitalism. There is an interesting dynamic to the push for socialism in the United States. Advocates may have a harder time convincing new migrants and citizens who fled socialist countries like Venezuela.
The draw of a “land of opportunity” has been due to not just our laws but also our economic system. The ability to sustain that growth (or support the existing social welfare systems) depends on a competitive economic system.
The irony is found in comments like those of Fidel Castro who declared that “my idea, as the whole world knows, is that the capitalist system now doesn’t work either for the United States or the world, driving it from crisis to crisis, which are each time more serious.” Cuba was (and continues to be decades later) an utter economic basket case without either liberty or prosperity.
Hugo Chavez made the same claim before driving his country into an economic tailspin.
As a student at the University of Chicago, I was fortunate enough to attend lectures by Milton Friedman and, despite being a liberal, I was convinced that there was a connection between capitalism and individual liberty. There are liberty-enhancing economic systems and those that are liberty-reducing. The freedom of economic choice in a capitalist system has historically reinforced individual liberty in my view.
The ASU event captures a rising call for dismantling an economic system that helped drive industrial innovation and massive wealth creation. It has also left great wealth disparities. We have sought to address poverty with social programs that offer greater opportunity for those who have not been able to escape cycles of poverty. We have much work to be done. However, the anti-capitalist movement often offers few specifics on the alternatives, as at the ASU event.
This is a debate that should be welcomed but not in this type of one-sided, jingoistic presentation. Imagine how much more substantive this panel would have been with an alternative viewpoint. Let’s have a discussion on the merits of capitalism and the record of alternative systems. That would offer educational and not merely emotive benefits to our academic community.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
We have previously discussed the anti-free speech views of Clinton’s former Labor Secretary, Robert Reich, who has tried to sell citizens on the perfectly Orwellian view that more freedom means tyranny when it comes to the freedom of expression. He also demanded that former president Donald Trump be banned from ballots as a “traitor” — all in the name of protecting democracy from itself. Last week, Reich wrote a column declaring Elon Musk “out of control” in his refusal to censor citizens and appeared to call for his arrest.
Reich has long been a prominent voice in the anti-free speech movement discussed in my recent book, The Indispensable Right: Free Speech in an Age of Rage. Indeed, he has given a voice to the rage in calling for others to be silenced or arrested.
Elon Musk has long been the primary target of Reich and his allies after dismantling the censorship system at Twitter, now X. Reich called Musk’s purchase of Twitter with a pledge to reduce censorship to be “dangerous nonsense.”
Notably, Reich’s friend, Hillary Clinton, was one of the first to call for a crackdown on Musk after his purchase of Twitter. Hillary Clinton and other Democratic figures turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans.
Reich has always shown a chilling fluidity in how free speech is protected and argued that public interest should be able to trump the right of any citizens in espousing views that he believes are dangerous.
In denouncing Musk, Reich encouraged a campaign to counter his efforts to resist censorship. He wrote that Musk “may be the richest man in the world. He may own one of the world’s most influential social media platforms. But that doesn’t mean we’re powerless to stop him.”
Like Hillary Clinton, Reich is calling on foreign governments and censors to silence American citizens including Musk: “Regulators around the world should threaten Musk with arrest if he doesn’t stop disseminating lies and hate on X.”
He even appears willing to undermine national security programs to stop unfettered free speech. He called for the U.S. government to cut off contracts with his companies despite their critical role in various national security efforts, including the possible rescue of the stranded two astronauts currently in space. None of that matters to Reich who appears to view free speech as a greater threat to our nation: “Why is the US government allowing Musk’s satellites and rocket launchers to become crucial to the nation’s security when he’s shown utter disregard for the public interest? Why give Musk more economic power when he repeatedly abuses it and demonstrates contempt for the public good?”
Reich’s call to regulate speech in the public interest is the Siren’s Call of every authoritarian regime in history. He will presumably tell us what speech is no longer tolerable for public policy reasons. Our “Indispensable Right” will, according to Reich, be safely in the hands of the European censors who can protect us from errant and dangerous thoughts.
As he explained earlier, “the kinds of things that we do about this is, focus less on thinking about free speech, but thinking about how the times have changed.” In this way, speech regulations can keep us “moving towards how we recommend content and … how we direct people’s attention is leading to a healthy public conversation that is most participatory.”
The “healthy public conversation” with Robert Reich increasingly appears to be his talking and the rest of us listening.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
We have been discussing Democratic leaders and activists who have been calling for revolutionary change and a rejection of the foundation of the American constitutional system. The latest is Human Rights Campaign president Kelley Robinson, who spoke at the National Democratic Convention. In an earlier speech, Robinson rejected what she referred to as the Founders’ “little piece of paper” and called for the reimagining of our constitutional system.
The voices calling for radical change have been growing for years, including among law professors and legal commentators. Viewers now get a steady diet of figures like MSNBC commentator Elie Mystal who called the U.S. Constitution “trash” and argued that we should simply just dump it.
I was recently called for a response to Robinson’s call. Yet, it is not clear if Robinson is speaking about the Declaration of Independence or the Constitution as that “little piece of paper.” However, she insists that “[i]n this moment, we’ve got to reimagine it with people that look and love like us at the center.”
Robinson added:
“And I think for us right now is about reimagining freedom and this American story in a way that is more revolutionary than what our Founders actually put down on that little piece of paper, but instead is the type of democracy that is by and for all of the people in this country. That’s the opportunity that we have.”
Her comments did include positive views of the progress made under the current system:
“The story of America is the story of progress towards freedom. In just a few generations, my family went from being enslaved in Mississippi to the first free Black family in Muscatine, Iowa, to preparing to elect President Kamala Harris. Progress is happening my friends!”
As someone who has supported LGBT rights for over four decades, I have nothing but admiration for those who fight for equal rights for everyone to be able to live their lives according to their own values and associations. However, a radical “reimagining” of our constitutional system is a popular and growing call on the left. It is often left vague in terms of what such a reimagination would entail, but suggests structural, not just policy, changes.
It is that “little piece of paper” that has secured the equal rights for members of this community.
Assuming that the “little piece of paper” is a reference to the Madisonian constitution, it is a “type of democracy” that has proven the oldest and most successful constitutional system in the history of the world. It has survived precisely because it was designed for the most pluralistic nation in the world. It allows for tremendous social and political changes but does so within a framework that protects individual rights.
Before we start “reimagining” our way out of the most stable constitutional system in history, we may want to consider how the alternatives have been faring around the world.
It is that “little piece of paper” that introduced a revolutionary concept of governance that permits a nation of rivaling factions and values to govern as one. That does not mean that we do not have deep and at times bitter divisions. However, we are joined in a common article of faith in the Constitution.
While he spoke more about democracy in general, Churchill’s famous comment could as easily refer to the Madisonian system: it may be “the worst form of Government except for all those other forms that have been tried from time to time.”
Communist Goals from “The Naked Communist” was read on the floor of the House of Representatives on January 10th, 1963 by U.S. Congressman Albert S. Herlong, Jr. of Florida.
The Naked Communist was written by ex-FBI agent Cleon Skousen in 1953. He describes the Marxist strategy during the Cold War.
Maybe we need someone to read these communist goals again. Send this article to your Senators and Congressmen and ask them to read this on the floor of both houses.
1. U.S. acceptance of coexistence as the only alternative to atomic war. 2. U.S. willingness to capitulate in preference to engaging in atomic war. 3. Develop the illusion that total disarmament [by] the United States would be a demonstration of moral strength. 4. Permit free trade between all nations regardless of Communist affiliation and regardless of whether or not items could be used for war. 5. Extension of long-term loans to Russia and Soviet satellites. 6. Provide American aid to all nations regardless of Communist domination. 7. Grant recognition of Red China. Admission of Red China to the U.N. 8. Set up East and West Germany as separate states in spite of Khrushchev’s promise in 1955 to settle the German question by free elections under supervision of the U.N. 9. Prolong the conferences to ban atomic tests because the United States has agreed to suspend tests as long as negotiations are in progress. 10. Allow all Soviet satellites individual representation in the U.N. 11. Promote the U.N. as the only hope for mankind. If its charter is rewritten, demand that it be set up as a one-world government with its own independent armed forces. (Some Communist leaders believe the world can be taken over as easily by the U.N. as by Moscow. Sometimes these two centers compete with each other as they are now doing in the Congo.) 12. Resist any attempt to outlaw the Communist Party. 13. Do away with all loyalty oaths. 14. Continue giving Russia access to the U.S. Patent Office. 15. Capture one or both of the political parties in the United States. 16. Use technical decisions of the courts to weaken basic American institutions by claiming their activities violate civil rights.
17. Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of teachers’ associations. Put the party line in textbooks. 18. Gain control of all student newspapers. 19. Use student riots to foment public protests against programs or organizations which are under Communist attack. 20. Infiltrate the press. Get control of book-review assignments, editorial writing, policy-making positions. 21. Gain control of key positions in radio, TV, and motion pictures. 22. Continue discrediting American culture by degrading all forms of artistic expression. An American Communist cell was told to “eliminate all good sculpture from parks and buildings, substitute shapeless, awkward and meaningless forms.” 23. Control art critics and directors of art museums. “Our plan is to promote ugliness, repulsive, meaningless art.” 24. Eliminate all laws governing obscenity by calling them “censorship” and a violation of free speech and free press. 25. Break down cultural standards of morality by promoting pornography and obscenity in books, magazines, motion pictures, radio, and TV. 26. Present homosexuality, degeneracy and promiscuity as “normal, natural, healthy.” 27. Infiltrate the churches and replace revealed religion with “social” religion. Discredit the Bible and emphasize the need for intellectual maturity, which does not need a “religious crutch.” 28. Eliminate prayer or any phase of religious expression in the schools on the ground that it violates the principle of “separation of church and state.”
29. Discredit the American Constitution by calling it inadequate, old-fashioned, out of step with modern needs, a hindrance to cooperation between nations on a worldwide basis. 30. Discredit the American Founding Fathers. Present them as selfish aristocrats who had no concern for the “common man.” 31. Belittle all forms of American culture and discourage the teaching of American history on the ground that it was only a minor part of the “big picture.” Give more emphasis to Russian history since the Communists took over. 32. Support any socialist movement to give centralized control over any part of the culture–education, social agencies, welfare programs, mental health clinics, etc. 33. Eliminate all laws or procedures which interfere with the operation of the Communist apparatus. 34. Eliminate the House Committee on Un-American Activities.
35. Discredit and eventually dismantle the FBI. 36. Infiltrate and gain control of more unions. 37. Infiltrate and gain control of big business. 38. Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which no one but psychiatrists can understand [or treat]. 39. Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals. 40. Discredit the family as an institution. Encourage promiscuity and easy divorce.
41. Emphasize the need to raise children away from the negative influence of parents. Attribute prejudices, mental blocks and retarding of children to suppressive influence of parents. 42. Create the impression that violence and insurrection are legitimate aspects of the American tradition; that students and special-interest groups should rise up and use [“]united force[“] to solve economic, political or social problems. 43. Overthrow all colonial governments before native populations are ready for self-government. 44. Internationalize the Panama Canal. 45. Repeal the Connally reservation so the United States cannot prevent the World Court from seizing jurisdiction [over domestic problems. Give the World Court jurisdiction] over nations and individuals alike.
The Naked Communist was written by ex-FBI agent Cleon Skousen in 1953. He describes the Marxist strategy during the Cold War.
President Ronald Reagan said of the book: “No one is better qualified to discuss the threat to this nation from communism. You will be alarmed, you will be informed and you’ll be glad you heard him.”
Marxist Strategy & Communist Goals
Completed to Date
01
U.S. acceptance of coexistence as the only alternative to atomic war.
DONE
02
U.S. willingness to capitulate in preference to engaging in atomic war.
DONE
03
Develop the illusion that total disarmament [by] the United States would be a demonstration of moral strength.
Working under Obama
04
Permit free trade between all nations regardless of Communist affiliation and regardless of whether or not items could be used for war.
DONE
05
Extension of long-term loans to Russia and Soviet satellites.
06
Provide American aid to all nations regardless of Communist domination.
DONE
07
Grant recognition of Red China. Admission of Red China to the U.N.
DONE
08
Set up East and West Germany as separate states in spite of Khrushchev’s promise in 1955 to settle the German question by free elections under supervision of the U.N.
DONE
09
Prolong the conferences to ban atomic tests because the United States has agreed to suspend tests as long as negotiations are in progress.
10
Allow all Soviet satellites individual representation in the U.N.
11
Promote the U.N. as the only hope for mankind. If its charter is rewritten, demand that it be set up as a one-world government with its own independent armed forces. (Some Communist leaders believe the world can be taken over as easily by the U.N. as by Moscow. Sometimes these two centers compete with each other as they are now doing in the Congo.)
12
Resist any attempt to outlaw the Communist Party.
DONE
13
Do away with all loyalty oaths.
DONE
14
Continue giving Russia access to the U.S. Patent Office.
15
Capture one or both of the political parties in the United States.
DONE
16
Use technical decisions of the courts to weaken basic American institutions by claiming their activities violate civil rights.
DONE
17
Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of teachers’ associations. Put the party line in textbooks.
DONE
18
Gain control of all student newspapers.
WORKING
19
Use student riots to foment public protests against programs or organizations which are under Communist attack.
DONE
20
Infiltrate the press. Get control of book-review assignments, editorial writing, policy-making positions.
DONE
21
Gain control of key positions in radio, TV, and motion pictures.
DONE
22
Continue discrediting American culture by degrading all forms of artistic expression. An American Communist cell was told to “eliminate all good sculpture from parks and buildings, substitute shapeless, awkward and meaningless forms.”
DONE
23
Control art critics and directors of art museums. “Our plan is to promote ugliness, repulsive, meaningless art.”
DONE
24
Eliminate all laws governing obscenity by calling them “censorship” and a violation of free speech and free press.
WORKING
25
Break down cultural standards of morality by promoting pornography and obscenity in books, magazines, motion pictures, radio, and TV.
DONE and getting worse
26
Present homosexuality, degeneracy and promiscuity as “normal, natural, healthy.”
DONE
27
Infiltrate the churches and replace revealed religion with “social” religion. Discredit the Bible and emphasize the need for intellectual maturity, which does not need a “religious crutch.”
WORKING
28
Eliminate prayer or any phase of religious expression in the schools on the ground that it violates the principle of “separation of church and state.”
DONE
29
Discredit the American Constitution by calling it inadequate, old-fashioned, out of step with modern needs, a hindrance to cooperation between nations on a worldwide basis.
DONE and GROWING
30
Discredit the American Founding Fathers. Present them as selfish aristocrats who had no concern for the “common man.”
DONE and GROWING
31
Belittle all forms of American culture and discourage the teaching of American history on the ground that it was only a minor part of the “big picture.” Give more emphasis to Russian history since the Communists took over.
DONE and GROWING
32
Support any socialist movement to give centralized control over any part of the culture–education, social agencies, welfare programs, mental health clinics, etc.
WORKING
33
Eliminate all laws or procedures, which interfere with the operation of the Communist apparatus.
WORKING
34
Eliminate the House Committee on Un-American Activities.
????
35
Discredit and eventually dismantle the FBI.
WORKING
36
Infiltrate and gain control of more unions.
DONE and GROWING
37
Infiltrate and gain control of big business.
WORKING
38
Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which no one but psychiatrists can understand [or treat].
WORKING
39
Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.
WORKING
40
Discredit the family as an institution. Encourage promiscuity and easy divorce.
DONE and GROWING
41
Emphasize the need to raise children away from the negative influence of parents.
WORKING
42
Create the impression that violence and insurrection are legitimate aspects of the American tradition; that students and special-interest groups should rise up and use [“]united force[“] to solve economic, political or social problems.
DONE and GROWING
43
Overthrow all colonial governments before native populations are ready for self-government.
WORKING
44
Internationalize the Panama Canal. (Thank you President Jimmy Carter)
DONE
45
Repeal the Connally reservation so the United States cannot prevent the World Court from seizing jurisdiction [over domestic problems. Give the World Court jurisdiction] over nations and individuals alike.
For months, we have been discussing the concerted effort of Democrats to bar challengers to President Joe Biden from primary ballots and block third-party candidates like Robert F. Kennedy, Jr. and Cornel West from appearing on the November ballots. As both Joe Biden and Kamala Harris insisted that “Democracy is on the ballot,” their allies sought to deny the ability of voters to cast their ballots for other candidates. Now, a state judge has issued a stinging denial of the effort of Democratic officials to block West from the Michigan ballots.
Democratic Secretary of State Jocelyn Benson helped lead the effort to prevent citizens from being able to vote for West in Michigan. Judge James Robert Redford issued the ruling days after West was kicked off the ballot due to technical issues.
West issued a statement: “Victory in Michigan! We brought thousands of voices to the table, and the court listened, rejecting the Democrats’ technical challenges. This is a win for democracy and for every person fighting for truth, justice, and love. Onward!” He is running with Black Lives Matter co-founder Melina Abdullah.
Democrats are still pushing to strip them from the ballots in other states to prevent voters from having a choice in the election. Another such effort failed in Maine recently.
The press and pundits have been largely silent about this effort despite the glaring contradiction with the campaign rhetoric of the DNC on saving democracy from imminent destruction. The media does not appear at all alarmed or critical of the effort to limit democratic choice. The Washington Post stated clinically “Democrats are taking third-party threats seriously this time.” Taking it seriously appears to mean using legal means to keep them from the ballots.
It is true that the main political parties have challenged qualification signatures and paperwork in the past. However, the reports indicate a systemic effort geared toward reducing the choices for voters. What is striking is that this is coming from democratic groups and the DNC, which are raising money on the “save democracy” narrative. The contradiction is spellbinding. On the same sites promising to oppose the third-party candidates, the DNC and other groups push the narrative that only the Democrats are working to protect the right to vote.
The Post reports that Democrats have studied the Hillary Clinton campaign and vowed not to allow third party candidates to drain away millions of voters as they did in 2016. This well-funded campaign to block other candidates is continuing. It was cited by Kennedy as one of the reasons that he pulled out of the race and endorsed former president Donald Trump.
West is now a threat with independents looking for an alternative to Trump and Harris. West has long been a charismatic figure in academia. Decades ago, I was his editor on what may have been his first law review publication as a young, rising divinity professor at Princeton.
One does not have to support Trump, West, or the other third-party opponents to find this effort repulsive. While some of us have challenged that hyperbolic claim that this “may be our last election,” the one thing that may not be on the ballot is choice, if the self-appointed defenders of Democracy have anything to say about it.
Below is my column in The Hill on the sudden embrace of bipartisanship in Washington … by some of the most partisan figures in our political system. Press and pundits are suddenly reframing Vice President Kamala Harris as a moderate while heralding Justice Amy Coney Barrett for her independence. It is enough to give you vertigo from the media and political spin.
Here is the column:
The late New York Gov. Mario Cuomo once famously observed that “you campaign in poetry; you govern in prose.“ One of the greatest poetic licenses in this election has been the claim of bipartisanship from some of the most rigid partisans in our politics.
Many in the media are reinventing history to appeal to citizens who want more moderation in government. This theme was picked up by Minnesota Gov. Tim Walz in his speech before the Democratic National Convention, when he claimed that Vice President Harris was not just a moderate but “never hesitated to reach across that aisle if it meant improving your lives, and she’s always done it with energy, with passion and with joy.”
Harris was one of the most liberal members of the Senate and was never viewed as someone likely to form a compromise on key votes. She was not one of the Democrats commonly referenced as moderates in that body on close votes. Harris was even rated to the left of socialist Sen. Bernie Sanders (I-Vt.). After her ranking by GovTrack was cited widely in the media as showing her as the most liberal member of the Senate, the site took down the page, which had been up for years. Harris is now to be portrayed as a moderate, whether it is true or not.
What was so striking is that Harris was valued by supporters precisely for being so uncompromising and consistently voting with the left. In her prior unsuccessful presidential run, she moved even further left. Harris was the only candidate other than Sanders to say that she wanted to abolish private insurance plans, a position which, like so many others, she has now recanted.
These same advocates of bipartisanship are lionizing Republicans who support Harris while demonizing Robert Kennedy Jr. for doing the same for Trump. To them, one is a profile of courage, the other a profile of corruption.
The poetry of politics was also evident this week after Justice Amy Coney Barrett joined the three liberal justices in voting in dissent in a case involving Arizona’s voter identification law. Barrett was praised for opposing the ruling to set aside a lower court order blocking enforcement of a 2022 law requiring registered voters to provide proof of citizenship. The majority (with the liberal justices) also blocked a provision that would have prevented tens of thousands of prior voters in Arizona from voting.
Conservatives were irate at Barrett, particularly after Virginia claimed to have found hundreds of non-citizens on its voting rolls. Other states such as Georgia found a smaller number of non-citizens registering to vote, but polls show widespread support for voter ID laws. None of that seemed to matter to Barrett, who ruled based on her conscience and understanding of the law. The left’s response to Barrett’s vote was the most telling. Her willingness to cross the ideological divide was celebrated. These are some of the same voices who denounced Barrett in her confirmation hearing as a robotic conservative stooge.
Few Democrats were willing to vote for this obviously qualified nominee. That included the newly minted moderate Harris, who voted “nay.”
While some of us at the time challenged this media narrative, given Barrett’s impressive scholarship and proven independence, she was denounced by senators, and her home was even targeted by protesters. Bloody dolls were thrown on her lawn with her young children inside after the location was revealed by activists. Some of these activists might even take credit for Barrett’s repeated votes with the left of the court. But it is not their coercion, but Barrett’s convictions that led to these votes. She has always been a jurist who shows a willingness to follow her principles wherever they take her.
Barrett continues (with Justices Roberts and Kavanaugh) to moderate many decisions with three colleagues on both ends of rulings. Roberts and Kavanaugh routinely rank as the most likely to vote with the majority of the court. This brings us back to the poetry. In her confirmation hearings, senators such as Sen. Sheldon Whitehouse (D-R.I.) attacked her nomination in the same way that they attacked the nomination of Justice Neil Gorsuch. Whitehouse portrayed both nominees as adding guaranteed votes for a conservative agenda, reading off the many decisions where conservatives voted as a block.
As I stated in my own testimony in the Gorsuch confirmation hearing, Whitehouse and his colleagues often seem to ignore that the liberal justices in those cases also voted like a block. Justice Sotomayor shows the same low percentage of voting with the opposite end of the court as do her colleagues Justices Alito and Thomas. Yet in her case, the pattern of voting was not viewed as partisan, but as simply getting cases right.
Both Gorsuch and Barrett have routinely voted with their liberal colleagues in major cases, despite the attacks of critics on their independence and integrity.
Most cases before the Supreme Court do not break along ideological lines, despite the portrayal in the media. Indeed, most are resolved unanimously (roughly half) or nearly unanimously by the court.
Take the 2023 cases. Only half of the 6-3 splits featured the six conservative and three liberal justices on opposite sides. Only eight percent (five of 57 cases) were decided 6-3 with the six Republican appointee/three Democratic split. The rest mixed up alliances. The least likely to join the majority of their colleagues were the three liberal justices, Sotomayor, Kagan and Jackson.
The liberal justices, however, are rarely portrayed as ideologues in the media, which consistently portrays the court as controlled by a six-conservative block of rigid partisans. In reality, they are all conscientious jurists trying to get cases right from their jurisprudential viewpoints. The consistency in voting reflects their adherence to their fundamental principles.
Politicians and pundits, ignoring the facts, continue to claim that the court is dysfunctional and ideologically divided. When elections or nominations come along, Democrats attack those on the other side as refusing to compromise or “cross the aisle.”
Many value the poetry of bipartisanship in politics but demand the prose of strict partisanship in governance. Calling Harris a moderate and Barrett a partisan is just part of the poetic license of American politics.
Below is my column in the New York Post on the withdrawal of Robert Kennedy, Jr. from the presidential race and his endorsement of former President Donald Trump. Kennedy’s speech resonated with many long-time Democrats who have found themselves estranged from the party. While Kennedy remains an independent, it is a cautionary tale that is being missed in the “joy” theme of the Democratic National Convention. The fact is that new Republicans are often not the product of ideology and association but anxiety and exclusion. Democrats make Republicans.
Here is the column:
The withdrawal of Robert F. Kennedy Jr. from the presidential race and his endorsement of former President Donald Trump was yet another extraordinary moment in an election that has been anything but predictable. Only a year ago, it would have been unthinkable that a sitting president would be effectively forced off a ticket and replaced by a candidate who did not secure a single vote for president.
Now, the nephew of John F. Kennedy and son of the Robert F. Kennedy has not just withdrawn from the Democratic Party but endorsed the Republican nominee. Amidst all of the claimed “joy” of the Democratic National Convention, there is a sobering reality that is being ignored by the ecstatic press and pundits: this is how Democrats make Republicans.
There is an old expression that “a conservative is a liberal who has been mugged.”
Irving Kristol explained the neoconservative movement was built by Democrats “mugged by reality.”
Kennedy has not become a Republican but rather joined the roughly half of Americans now identifying as independents. While this country is solidly under the hold of a duopoly of power in the two main parties, only 25% of the country identify as Democrats, and 25% as Republicans.
Kennedy’s departure from the Democrats has been mocked in the press. However, when he spoke on his withdrawal, many of us who have been lifetime members of the party identified with his remarks.
I come from a politically active liberal Democratic family in Chicago. I spent much of my life working for liberals since I first came to Washington as a Democratic House page in the 1970s. I did stints on the Hill or on campaigns with Democrats ranging from Rep. Sid Yates (Ill.) to Sen. William Proxmire (Wis.) to Mo Udall (Arz.). I even worked on the campaign and ran for delegate for RFK Jr.’s uncle, Sen. Ted Kennedy.
Then the party changed. Where once they defended free speech, Democrats have rallied behind censorship and blacklisting of those with opposing views. They have sought to block dozens of Republicans from ballots, including former President Trump. To make matters worse, they have done so in the supposed name of democracy.
Those actions were raised by Kennedy in his powerful and poignant withdrawal speech. He detailed how the Democratic party moved to stop him from running against President Biden in the primary, including efforts to block him from ballots. It was an ironic moment. After harassing candidates like RFK and Minnesota Rep. Dean Phillips, the Democratic leadership then simply installed their choice at the convention in an unprecedented bait-and-switch.
There could have been a substantive primary that exposed the diminished mental state of Biden and allowed for a democratic choice on the best nominee. Instead, the Democrats prevented such choices from being made and selected a leader with all of the transparency and deliberation of a party Congress in China. Kennedy said that the Democratic Party has virtually shoved him and other voters into the arms of Donald Trump and the Republican Party.
Kennedy observed that “I began this journey as a Democrat, the party of my father, my uncle, the party which I pledged my own allegiance to long before I was old enough to vote.”
He said that his party was the one that championed free speech, government transparency, and opposed unjust wars. “True to its name, it was the party of democracy.”
He said that the party has turned its back on all of the values that once defined it. For former Democrats like Kennedy, running on “joy” is no substitute for these profound changes in the party.
Indeed, the DNC bordered on the creepy as speaker after speaker sold the idea that, if voters could just swallow the Harris candidacy, they would immediately experience joy like some political prozac commercial.
It is not clear whether the red pill/blue pill pitch will be enough, or whether Kennedy’s endorsement will turn the critical votes in swing states.
However, the DNC showed how Democrats make Republicans. The unrelenting identity politics and claims of defending democracy (while opposing democratic choice) only reaffirmed for many that there is no longer a big tent in the party of Roosevelt and Kennedy. There is a serious question whether John F. Kennedy would recognize or support the current Democratic Party. It now rejects many of his core, mainstream values. His nephew highlighted the irony of how the party not only worked to block the ability of opponents to challenge President Biden but worked to “conceal the cognitive decline of the sitting president.”
Even the Washington Post recently admitted that “the 81-year-old had shown signs of slipping for a long time, but his inner circle worked to conceal his decline.” However, the Post failed to note that Vice President Kamala Harris was part of that inner circle. Indeed, she has been touting her close work with Biden in her campaign.
There is little recognition that, if true, it means that Harris, the White House, and leading Democrats lied to the public about Biden’s mental decline for their own political interests.
For Kennedy, it was all too much “and, most sadly … in the name of saving Democracy, the Democratic Party set itself to dismantling it, lacking confidence in its candidate, that its candidate could win in a fair election at the voting booth.”
Elon Musk put it simply: “#FreePavel.” For many, a hashtag of one billionaire calling for the release of another billionaire is hardly a compelling cause. Telegram CEO Pavel Durov, 39, is neither a familiar nor sympathetic figure for most Americans. However, for free speech advocates, Durov’s arrest is a chilling escalation of global censors in using European laws to control speech on the Internet.
The press and pundits heralded the arrest and played up the allegations that Durov is under investigation for fraud and child abuse. Some might think from the headlines that Durov is himself being investigated for committing such crimes. While we have not seen anything akin to a charging sheet, reports indicate that French authorities took the action because of his refusal to yield to their demands to censor content on his messaging app.
Others have been ecstatic that censors could soon come for Musk. Retired Lt. Col. Alexander Vindman, who testified in the Trump impeachment proceedings, declared“There’s a growing intolerance for platforming disinfo & malign influence & a growing appetite for accountability. Musk should be nervous.”
Social media is now the dominant form of communication between people. It surpasses telephones. There is, however, a major difference in how such communications are protected. There would be an outcry if AT&T broke into a telephone call to object to the views of the parties and cut off access to the telephone lines until they moderated their views.
The Europeans have been threatening to hold executives liable for how others use their sites. Imagine if a mobster used a telephone to do business and the FBI arrested the CEO of AT&T.
The implication of this case goes far beyond Durov. Social media sites allow large numbers of people to communicate and to associate. They share values or viewpoints, including some that most of us find offensive or repulsive. However, free speech should protect the right of people to associate so long as they do not commit crimes.
Under free speech principles, those crimes should not include viewpoints or ideology. If individuals are engaging in child pornography or human trafficking, they should be arrested. That is conduct, not just speech.
While the media emphasizes the allegations that there are people engaged in fraud or child porn, officials add that Durov has failed to remove viewpoints that they consider extreme or offensive. French officials have cited the failure to engage in greater “content moderation,” the euphemism of censorship.
We have been discussing how countries like France and the United Kingdom have been ramping up anti-free speech crackdowns. Recently, the European Union threatened Musk that he could be charged if he did not censor political speech in this election, including any information deemed by the EU to be false in his interview with Donald Trump.
European Commissioner for Internal Markets and Services Thierry Breton issued a threatening message to Musk, “We are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political — or societal — events around the world, including debates and interviews in the context of elections.”
The law behind these threats is the Digital Services Act. The act bars speech that is viewed as “disinformation” or “incitement.” European Commission Executive Vice President Margrethe Vestager celebrated its passage by declaring that it is “not a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracy’s back.”
In addition to Musk, Robert Kennedy Jr. has denounced the arrest.
This action is not due to the encryption capacity or child porn rationales. European officials have been making the same threats against other sites over the failure to censor views that they deem unacceptable.
Rumble CEO Chris Pavlovski wrote “France has threatened Rumble, and now they have crossed a red line by arresting Telegram’s CEO, Pavel Durov, reportedly for not censoring speech.”
Telegram has over 900 million users and allows large groups of people to communicate across different channels. The New York Times reported that officials have targeted the company for its failure, among other things, in allowing “far-right extremist groups” to use the app.
After Elon Musk bought Twitter and dismantled most of the company’s censorship program, many on the left went bonkers. That fury only increased when Musk released the “Twitter files,” confirming the long-denied coordination and support by the government in targeting and suppressing speech. In response, Hillary Clinton and other Democratic figures turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans.
The EU immediately responded by threatening Musk with confiscatory penalties against not just his company but himself. He would have to resume massive censorship or else face ruin.
Notably, Durov left Russia in 2014 after refusing to comply with Kremlin demands to shut down opposition groups on his VK social network. He later left VK and co-founded Telegram.
European regulators have objected to what they view as misinformation on Telegram about the Ukraine war. Yet, Telegram is also a popular source for Russians to get unfiltered information on the war. It allows them to evade Russian censors due to its encryption capacity.
Americans should not be deceived or distracted by the Durov case. The underlying claim of authority by these officials will impact all users of social media. They are making the long anticipated move to target CEOs to get them to yield as did the executives at sites like Facebook. The fear is that, once these executives are forced into cringing obedience, Europe can regulate speech on a global level.
We have previously discussed the cancel campaigns targeting JK Rowling, the author of the Harry Potter series. Rowling was not only the greatest selling author of all time but a wildly popular writer until she publicly opposed certain transgender policies as inimical to the advances in feminism. Now, she is the target of a lawsuit by Algerian boxer Imane Khelif, the gold-medal winning athlete who had previously failed a gender test to confirm that she is a female fighter. We previously discussed that global debate, but Khelif is now accusing Rowling out of many thousands of critics of being a cyberbully. X owner Elon Musk has also been named in the lawsuit.
She held her ground after Scotland passed a draconian law, the Hate Crime and Public Order (Scotland) Act 2021. The new crime under the law covers “stirring up hatred” relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything “that a reasonable person would consider to be threatening or abusive.”
Rowling has been the target of a global campaign due to her rejection of transgender laws and policies. Many on the left have unleashed book bans and burnings. I have been critical of that campaign. Even third parties who have supported Rowling’s right to free speech have been targeted in cancel campaigns.
Rowling previously posted various responses to the controversy on her X account on August 7, including: “For the record, bombarding me with pictures of athletic women to ‘teach’ me that women don’t all look like Barbie is like spamming me with pics of differently shaped potatoes to prove rocks are edible. I can still see the difference and you look frankly bonkers.”
She later also posted: “Commentators pretending critics of the IOC’s reliance on documents rather than sex testing think Khelif is trans are straw-manning. I don’t claim Khelif is trans. My objection, and that of many others, is to male violence against women becoming an Olympic sport.”
She further wrote on X how she was concerned over both boxers challenged over their gender at the Olympics: “What will it take to end this insanity? A female boxer left with life-altering injuries? A female boxer killed?”
France has eviscerated free speech protections over the last few decades with speech criminalization laws. There is some question whether the French laws would apply to tweets made outside of the country. These laws criminalize speech under vague standards referring to “inciting” or “intimidating” others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti, including using ‘dirty whore” in criticism.
In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority “smelly.” A French teenager was charged for criticizing Islam as a “religion of hate.”
Rowling has every right to be heard on the Olympic boxing controversy. This debate raises core issues that touch on a wide array of political speech. Khelif has the ability to refute these claims through the exercise of her own free speech. As in the past battles fought by Rowley, her effort to advocate for women’s rights is also a major test over free speech in Europe.
The crackdown on free speech continues in the United Kingdom as officials use recent rioting to justify a roundup of citizens who they view as “pushing harmful and hateful beliefs.” The government is ramping up arrests of those with “extremist ideologies” in the latest wave of arrests. The crackdown includes those accused of misogynist views. In my book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how difficult it is to get a free people to give up freedoms. They have to be afraid, very afraid. For that reason, governments tend to attack free speech during periods of public anger or fear. That pattern is playing out, yet again, in the United Kingdom. The recent anti-immigration riots have given officials a renewed opportunity to use anti-free speech laws to target those with opposing views. For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests. A man was convicted for sending a tweet while drunk referring to dead soldiers. Another was arrested for an anti-police t-shirt. Another was arrested for calling the Irish boyfriend of his ex-girlfriend a “leprechaun.” Yet another was arrested for singing “Kung Fu Fighting.” A teenager was arrested for protesting outside of a Scientology center with a sign calling the religion a “cult.” Last year, Nicholas Brock, 52, was convicted of a thought crime in Maidenhead, Berkshire. The neo-Nazi was given a four-year sentence for what the court called his “toxic ideology” based on the contents of the home he shared with his mother in Maidenhead, Berkshire.
While most of us find Brock’s views repellent and hateful, they were confined to his head and his room. Yet, Judge Peter Lodder QC dismissed free speech or free thought concerns with a truly Orwellian statement: “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.”
Lodder lambasted Brock for holding Nazi and other hateful values:
“[i]t is clear that you are a right-wing extremist, your enthusiasm for this repulsive and toxic ideology is demonstrated by the graphic and racist iconography which you have studied and appeared to share with others…”
Even though Lodder agreed that the defendant was older, had limited mobility, and “there was no evidence of disseminating to others,” he still sent him to prison for holding extremist views.
After the sentencing Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing South East (CTPSE), warned others that he was going to prison because he “showed a clear right-wing ideology with the evidence seized from his possessions during the investigation….We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.”
“Toxic ideology” also appears to be the target of Ireland’s proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) law. It covers the possession of material deemed hateful. The law is a free speech nightmare. The law makes it a crime to possess “harmful material” as well as “condoning, denying or grossly trivializing genocide, war crimes, crimes against humanity and crimes against peace.” The law expressly states the intent to combat “forms and expressions of racism and xenophobia by means of criminal law.”
The Brock case proved, as feared, a harbinger of what was to come. The home secretary, Yvette Cooper, has vowed to crack down on people “pushing harmful and hateful beliefs.” That includes what she calls extreme misogyny.
Cooper said that the problem revealed by the recent protests was “gaps in the current system” and stressed that “it’s not OK any more to ignore the massive growing threat caused by online hatred towards women and for us to ignore it because we’re worried about the line, rather than making sure the line is in the right place as we would do with any other extremist ideology.”
She added: “For too long governments have failed to address the rise in extremism, both online and on our streets, and we’ve seen the number of young people radicalized online grow. Hateful incitement of all kinds fractures and frays the very fabric of our communities and our democracy.”
For free speech advocates, it is chilling to hear UK officials state that they have been too lax on free speech in the past and must now take censorship and arrests more aggressively. The United Kingdom has a myriad of laws criminalizing speech with vague terms allowing for arbitrary enforcement. For example, Public Order Act 1986 prohibits any expressions of racial hatred, defined as hatred against a group of persons by reason of the group’s color, race, nationality (including citizenship) or ethnic or national origins.
Section 18 of the Act specifically includes any speech that is “threatening, abusive, or insulting.” An arrest does not have to be based on a showing of intent to “stir up racial hatred,” but can merely be based on a charge that “having regard to all the circumstances racial hatred is likely to be stirred up thereby.”
For those Americans who have remained silent during as this anti-free speech movement grows, you need only to look to the United Kingdom to see what this movement means for our “indispensable right.” That wave has now reached our shores, and it will require each one of us to defend a right that defines us all.
Below is my column in the New York Post on the complaints of Jewish groups that they were denied permits to march in Chicago during the Democratic National Convention while other groups, including pro-Palestinian groups, were allowed to do so. There is a crushing irony in Chicago given the decision in 1978 to allow Nazis to march in nearby Skokie, but Jews could not march in Chicago in 2024.
Here is the column:
This week, citizens will gather in Chicago during the Democratic National Convention to voice their support for Israel and protest the abuses of Hamas. However, this largely Jewish gathering will not be marching. Instead, they will gather on a small private lot blocks away from the convention as thousands of pro-Palestinian protesters march through the streets. The reason is that Democratic Mayor Brandon Johnson has refused to grant their request for a permit.
While pro-Palestinian protesters have been given an array of accommodations by the city (and received a shoutout from President Joe Biden in his convention address), the Jewish protesters are only able to gather due to the donation of a private lot by an owner for their use. Even as pro-Palestinian protesters veered off approved routes and tore down security fencing, it will be the Jewish protesters who will reportedly remain confined to this private lot under the watchful eye of the Chicago Police Department.
Besides pro-Palestinian protesters, pro-abortion protesters have been allowed to march, and Planned Parenthood is celebrating the nomination of Vice President Kamala Harris with free abortions.
So Jewish protesters get to watch as favored groups parade in abortion pill outfits, but they cannot march with the images of the Hamas hostages in Gaza.
Josh Weiner, co-founder of Chicago Jewish Alliance, confirmed that the group was not granted permits, so all they could do is walk around such approved protests to “make our presence felt.”He added that“pro-Palestine protesters have gotten multiple permits, including a march, which seems to be a little bit weighted on one side.”
For Chicagoans like myself, the treatment of the pro-Israel protesters at the DNC could not be more ironic or disturbing. Forty-six years ago, Nazis were allowed to march through Skokie, Illinois, despite the presence of thousands of Holocaust survivors in the largely Jewish city. The Skokie case is considered one of the milestone moments for free speech, allowing a small group of anti-Semites and racists to march despite the overwhelming opposition in the public. The Nazis were outnumbered 70-1 by counterprotesters and soon receded into obscurity.
Now roughly five decades later, Jewish marchers are being effectively blocked from marching through the city of Chicago, presumably because they would be “too disruptive.” The city’s passive aggressive approach is fooling no one.
The Johnson administration has been coordinating plans for the convention with the Democratic leadership. The record in this case shows a transparently hostile response to the Jewish protesters. Despite putting in their request in June, the Jewish protesters were denied while pro-Palestinian protesters were granted permission to march. The city slow-walked the permit request. When the permit was not granted, it then said that the Jewish groups failed to apply in time when they renewed their requests multiple times. The groups have accused the city of simply not responding to their repeated efforts to address the permits.
Yet Hatem Abudayyeh, executive director of the Arab American Action Network, said that the mayor had personally reached out to reemphasize his support: “The mayor has said from the very beginning that he supports the protest movement. The protest movement is what brought him to City Hall. . . . He said, ‘I understand that struggle. Because I am part of a national liberation struggle as well.’”
It was equally clear that many Democrats did not want Jews to march. This is unfortunately nothing new for those who support Israel. At Columbia, a professor had his school access card deactivated and was told not to come on campus because his presence might enrage anti-Israel protesters.
In England, a Jewish man was told that he could not walk on a street because “you are quite openly Jewish” and it might trigger pro-Palestinian marchers.
The treatment of the Jewish groups in Chicago outside of the convention stands in sharp contrast to what is being said inside the convention. Speaker after speaker has declared the party to be the champion of the Constitution and free speech. The one thing that organizers cannot abide in a celebration of constitutional freedom is the actual exercise of those freedoms by unpopular groups.
In only five decades, Jewish groups have become too controversial to march. Instead, the Israeli-American Council has given up waiting for a permit to march and will host a Hostage Square display on private property.
The irony is crushing for many of us who lived through the 1978 controversy. While the Nazis could march in Skokie, these Jews will not be marching in Chicago.
Below is my column in The Hill on the move of the European Union to force Elon Musk to censor X users, including political speech leading up to the 2024 election. The column discusses this Rockwell painting, which we often use in discussing free speech controversies.
Here is the column:
Eighty years ago, the U.S. government launched a war bond campaign featuring a painting by artist Norman Rockwell in the struggle against the authoritarian threat from Europe. The picture they chose was Rockwell’s Freedom of Speech depicting a man rising to speak his mind at a local council meeting in Vermont. The image rallied the nation around what Louis Brandeis called our “indispensable right.”
Now, that very right is again under attack from another European government, which is claiming the right to censor what Americans are allowed to say about politics, science and other subjects. Indeed, the threat from the European Union may succeed in curtailing American freedom to an extent that the Axis powers could not have imagined. They may win, and our leaders have not said a thing yet about it.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the inspiration for Rockwell’s painting: a young selectman in Vermont named James “Buddy” Edgerton. The descendent of a Revolutionary War hero, Edgerton stood up as the lone dissenter to a plan to build a new schoolhouse over the lack of funding for such construction.
For Rockwell, the scene was a riveting example of how one man in this country can stand alone and be heard despite overwhelming opposition to his views. It was, for Rockwell (and for many of us), the quintessential American moment. In the 1940s, people like Edgerton had to travel to small board meetings or public spaces to speak their mind. Today, the vast majority of political speech occurs over the Internet and specifically social media. That is why the internet is the single greatest advancement for free speech since the printing press. It is also the reason governments have spent decades seeking to control speech over the internet, to regulate what people can say or read.
One of the greatest threats to free speech today is the European Digital Services Act. The act bars speech that is viewed as “disinformation” or “incitement.” European Commission Executive Vice President Margrethe Vestager celebrated its passage by declaring that it is “not a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracy’s back.”
In Europe, free speech is in free fall. Germany, France, the United Kingdom and other countries have eviscerated free speech by criminalizing speech deemed inciteful or degrading to individuals or groups. The result had made little difference to the neo-Nazi movement in countries like Germany, which is reaching record numbers. It has, however, silenced the rest of society. According to polling, only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans do not even feel free expressing themselves in private among friends. Only 17 percent feel free to express themselves on the internet. They have silenced the wrong people, but there is now a massive censorship bureaucracy in Europe and the desire to silence opposing voices has become insatiable.
Some in this country have the same taste for speech-regulation. After Elon Musk bought Twitter and dismantled most of the company’s censorship program, many on the left went bonkers. That fury only increased when Musk released the “Twitter files,” confirming the long-denied coordination and support by the government in targeting and suppressing speech.
In response, Hillary Clinton and other Democratic figures turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans. The EU immediately responded by threatening Musk with confiscatory penalties against not just his company but himself. He would have to resume massive censorship or else face ruin.
It was a case of the irresistible force meeting the immovable object. The anti-free speech movement had finally found the one man who could not be bullied, coerced or threatened into submission. Musk’s defiance has only magnified the unrelenting attacks against him in the media, academia and government. If Musk can be broken, these figures will once again exercise effective control over a large swath of speech globally.
This campaign recently came to a head when Musk had the audacity to interview former president Donald Trump. In anticipation of the interview, one of the most notorious anti-free speech figures in the world went ballistic. European Commissioner for Internal Markets and Services Thierry Breton issued a threatening message to Musk, “We are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political — or societal — events around the world, including debates and interviews in the context of elections.”
While offering a passing nod to the freedom of speech, he warned Musk that “all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events.” In other words, be afraid, be very afraid. Musk responded with “Bonjour!” and then suggested that Breton perform a physically challenging sexual act.
To recap, the EU is now moving to force censorship upon American citizens to meet its own demands of what is false, demeaning or inciting. And that includes censorship even of our leading political candidates for the presidency. The response from the Biden administration was not a presidential statement warning any foreign government from seeking to limit our rights or even Secretary of State Antony Blinken calling the EU ambassador to his office for an expression of displeasure.
That’s because Biden and Harris are not displeased with but supportive of letting the EU do what they are barred from doing under our Constitution. This administration is arguably the most anti-free speech government since John Adams signed the Sedition Act. They have supported a massive system of censorship, blacklisting and targeting of opposing voices. Democratic members have given full-throated support for censorship, including pushing social media companies to expand in areas ranging from climate control to gender identity.
So, after only 80 years, our leaders are silent as a European government threatens to reduce our political speech to the lowest common denominator, which they will set according to their own values. Not a shot will be fired as Biden and Harris simply yield our rights to a global governing system.
But we do not have to go quietly into this night. Free speech remains a human right that is part of our DNA as Americans. We can fight back and protect millions of Edgertons who want to express their views regardless of the judgment of the majority.
I previously called for legislation to get the U.S. government out of the censorship business domestically. We also need new legislation to keep other countries from regulating the speech of our own citizens and companies. While this country has long threatened retaliation in combatting market barriers in other countries, we need to do the same thing for free speech. We need a federal law that opposes the intrusion of the Digital Services Act into the U.S. If free speech is truly the “indispensable right” of all Americans, we need to treat this threat as an attack on our very existence. It is not only the rawest form of foreign intervention into an election, but a foreign attack on our very freedoms. This is why we must pass a Digital Freedom Act.
American Family Association
American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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American Family Association
American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
American Family Association
American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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